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VA  UGHN'S 

PRACTICAL  REVIEW 

LAW  STUDENTS 
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VAUGHN'S 


PRACTICAL  REVIEW 


FOR 


LAW  STUDENTS 


Questions  and  Answers 


Compiled  By 

D.   \V.  FIvANIGAN  &  C.   I.   PARKER 

Attorn Kvs  at  Law 


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1969 


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PREFACE 

The  chief  design  of  this  book  is  to  furnish  a  review  for  Law 
Students,  preparatory  to  final  examination  for  the  bar.  The  ques- 
tions and  answers  contained  herein,  embrace  all  subjects,  the  study 
of  which  are  required  by  the  Rules  of  the  District  Court  of  Appeal. 

The  Author  wishes  here  to  state  that  this  book  is  not  intend  - 
ed  to  shorten  the  work  of  the  student  or  to  act  in  any  way  as  a  sub- 
stitute for  text-books  prescribed.  But  it  is  a  compendium  of  impor- 
tant questions  and  answers  which  have  been  carefully  selected  from 
the  Codes  and  from  Standard  works  of  law  and  equity,  to  be  used 
as  a  quizzer  after  the  entire  course  has  been  carefully  studied. 

D.  W.  F. 


> 


Let  him  remember  that  every  eye  is  busy  in  the  discovery 
of  his  weaknesses,  and  that  every  ear  is  open  to  the  detection  of  his 
errors.  The  utmost  tenderness  is  shown  to  the  embarrassment  of 
inexperience,  but  ignorance  finds  no  mercy.  It  is  true,  it  is  not 
hissed  off  the  stage,  but  it  sinks  beneath  the  awful  chilling  influ- 
ence of  surrounding  wisdom.      (Raithby). 


Vaughn's  Questions  &  Answers 


1  Q.— What  is  law? 

A. — Law  is  rule  of  action  dictated  by  some  superior  power  and  which 
the   inferior   is   bound   to   obey. —  (Blackstone.) 

2  Q.— What  is  Civil  Law? 

A. — C'ivil  Law  was  the  system  of  Jurisprudence  held  and  adminis- 
tered in  the  Roman  Empire,  particularly  as  set  forth  in  the 
compilation  of  Justinian   and  his  successors. — (Blackstone.) 

3  Q. — What  is  Common  Law? 

A. — Common  Law  in  England  is  the  unwritten  law  founded  upon  gen- 
eral customs,  particular  customs  and  particular  laws  that  were 
of  immememorial  usage;  whereof  judicial  decisions  were  the 
evidence,  and  were  preserved  in  the  public  records. — (Black- 
stone. 

4  Q. — What  is  Municipal  Law? 

A. — Municipal  Law  is  a  rule  of  civil  conduct  prescribed  by  the  supreme 
power  in  a  State  commanding  what  is  right  and  prohibiting 
what  is  wrong. — (Robinson.) 

5  Q.— What  is  Equity? 

A. — Equity  is  the  correction  of  that  wherein  the  law  by  reason  of  its 
universality  is  deficient. — (Grotius.) 

6  Q. — How  does  Equity  differ  from  Common  Law? 

A. — In  the  mode  of  proof,  trial  and  relief. — (Eaton.) 

7  Q. — How  many  forms  of  actions  are  there  in  this  State? 

A. — There  are  two  forms,  civil  and  criminal. — (C.  C.  P.   24.) 

8  Q. — What  is  the  meaning  of  "cause  of  action"? 

A. — A  cause  of  action  consists  of  a  right  belonging  to  a  plaintiff  which 
has  been  violated  by  some  wrongful  act  or  omission  of  the  de- 
fendant.—(43-8  Atlanta  1041.) 

9  Q. — What  is  a  counter-claim? 

A. — It  is  a  claim  presented  by  the  defendant  in  opposition  to  or  deduc- 
tion  from    the   claim   of   the   plaintiff. — (C.   C.   P.   437.) 
10     Q. — What  is  an  answer? 

A. — It  is  any  pleading  setting  up  matters  of  fact  by  way  of  defense; 
a  general  or  specific  denial  of  the  material  allegations  of  the 
complaint  controverted  by  the  defendant,  or  a  statement  of  new 
matter  constituting  a  defense  or  counterclaim. —  (C.  C.  P.  437.) 


11 

Q- 

A. 

12 

Q- 

A. 

13 

Q- 

A. 

14 

Q- 

A. 

15 

Q. 

A. 

16 

Q- 

A. 

17 

Q- 

A. 

18 

Q- 

A. 

19 

Q- 

A. 

20 

Q- 

A. 

-What  is  a  cross-complaint? 

-It  is  an  affirmative  relief  sought  by  the  defendant  against  any 
party  relating  to  or  depending  upon  the  contract  or  transaction 
upon  which  the  action  is  brought. — (C.  C.  P.  442.) 

-What  are  pleadings  in  this  State? 

-Pleadings  are  the  formal  allegations  by  the  parties  of  their 
respective  claims  and  defenses  for  the  judgment  of  the  Court. — 
(C.  C.  P.  420.) 

-What  are  pleadings  at  common  law? 

-Pleadings  are  the  mutual  altercations  between  the  plaintiff  and 
defendant  reduced  to  writing. — (Blackstone.) 

-What  is  marriage? 

-Marriage  is  a  personal  relation  arising  out  of  a  civil  contract  to 
which  the  consent  of  the  parties  capable  of  making  that  contract 
is  necessary.  Consent  alone  will  not  constitute  marriage;  it 
must  be  followed  by  a  solemnization  authorized  by  this  code. — 
(C.  C.  55.) 

-What  is  a  will? 

-A  will  is  an  expression  in  a  manner  sanctioned  by  law  of  that 
which  one  may  legally  require  to  be  done  after  his  death. — 
(Gardner.) 

-How  may  a  marriage  be  dissolved? 

-By  death  of  one  of  the  parties,  or  by  judgment  of  a  court  of 
competent  jurisdiction. — (C.   C.   90.) 

-What  are  the  causes  of  divorce? 

-Adultery,  extreme  cruelty,  willful  desertion,  willful  neglect, 
habitual    intemperance    and    conviction    of   felony. — (C.    C.    92.) 

-What  are  the  grounds  for  denying  a  divorce? 

-Connivance,  collusion,  condonation,  recrimination  or  limitation 
and  lapse  of  time. — (C.  C.  111.) 

-What  is  a  corporation? 

-A  corporation  is  an  artificial  being,  invisible,  intangible  and 
existing  only  in  the  contemplation  of  law. — (Marshall.) 

-How  is  a  corporation  formed  in  this  State? 

-By  the  voluntary  association  of  any  three  or  more  persons,  a 
majority  of  whom  must  be  residents  of  this  State,  filing  Articles 
of  Incorporation,  containing  name,  purpose  formed,  principal 
place  of  business,  term  of  years  to  exist,  not  exceeding  50; 
number  of  names  and  addresses  of  directors  or  trustees,  not  less 
than  three,  nor  more  than  50;  amount  of  capital  stock,  number 
of  shares  into  which  it  is  divided,  and  amount  actually  sub- 
scribed, and  by  whom;  said  Articles  to  be  filed  with  the  County 
Clerk  in  the  County  where  principal  place  of  business  is 
conducted,  and  a  certified  copy  of  same  filed  with  the  Secretary 
of  State.— C.  C.  290.) 

6 


21  Q. — "What  arc  some  of  the  powers  incident  to  a  corporation  T 

A. — To  maintain  perpetual  succession,  to  act  in  their  corporate  capacity 
like  an  individual,  to  purchase  and  hold  lands,  to  have  a  common 
Beal  by  which  it  acts  and  speaks  only,  and  to  make  by-laws 
for   its   own   government   and   regulation. — (Blackstone.) 

22  Q. — How  were  corporations  created  at  Common  Law? 

A. — By  acts  of  parliament,  by  royal  charter  and  by  prescription. — 
(Blackstone.) 

23  Q.— What  is  property? 

A. — It  is  the  rightful  dominion  of  man  over  external  objects. — (Rob- 
inson. 

24  Q. — How  are   things   divided? 

A. — Into   things  real  and   personal. —  (Blackstone.) 

25  Q. — What  are  things  real? 

A. — They  are  such  as  are  of  a  permanent,  fixed  and  immovable  nature, 
and  cannot  be  carried  out  of  their  place,  as  lands  and  tenements. 
— (Blackstone.) 

26  Q. — What  is  a  contract? 

A. — A  contract  is  an  agreement,  upon  a  sufficient  consideration,  to  do 
or  not  to  do  a  particular  thing. — (Blackstone.) 

27  Q. — Who  may  make  a  contract? 

A. — All  persons  are  capable  of  contracting  except  minors,  persons  of 
unsound  mind,  and  persons  deprived  of  civil  rights. — (C.  C. 
1556.) 

28  Q. — What  are  the  essential  elements  of  a  contract? 

A. — They  are  (1)  parties  capable  of  contracting;  (2)  their  consent; 
(3)  a  lawful  object;  and  (4)  a  sufficient  cause  and  considera- 
tion.—(C.  C.   1550.) 

29  Q. — What  is  the  consideration  of  a  contract? 

A. — Any  benefit  conferred,  or  agreed  to  be  conferred,  upon  the  prom- 
isor, by  any  other  person,  to  which  the  promisor  is  not  lawfully 
entitled,  or  any  prejudice  suffered,  or  agreed  to  be  suffered,  by 
such  person  other  than  such  as  he  is  at  the  time  of  consent  law- 
full}'  bound  to  suffer,  as  an  inducement  to  the  promisor,  is  a 
good    consideration    for    a    promise. — (C.    C.    1605.) 

30  Q. — How  are  contracts  divided? 

A. — Contracts  are   either  express  or   implied. —  (Blackstone.) 

31  Q. — What  is  the  difference  between  an  implied  and  an  express  contract? 
A. — The  former  is  one  the  existence  and  terms  of  which  are  manifested 

by  conduct;  the  latter  is  one  the  terms  of  which  are  stated  in 
words. —  (Parsons.) 

32  Q. — What  is  a  partnership? 

A. — It  is  the  association  of  two  or  more  persons  for  the  purpose  of 
carrying  on  business  together,  dividing  its  profits  between  them 
and  sharing  the  losses. — (C.  C.  2395.) 


33  Q. — What  is  a  special  partnership? 

A. — A  special  partnership  is  one  formed  by  two  or  more  persona  for 
the  transaction  of  any  particular  business,  except  banking  or 
insurance;  and  consists  of  one  or  more  persons  called  general 
partners,  and  one  or  more  persons  called  special  partners. — 
(C.   C.   2477-8.) 

34  Q. — What  is  a  vendor's  lien? 

A. — A  vendor's  lien  is  a  lien  the  grantor  of  real  property  has  in  the 
same,  independent  of  possession,  for  so  much  of  the  price  as 
remains  unpaid  and  unsecured  otherwise  than  by  the  personal 
obligation  of  the  buyer;  or  any  one  who  sells  personal  property 
has  a  special  lien  thereon,  dependent  on  possession,  for  its  price, 
if  it  is  in  his  possession  when  the  price  becomes  payable,  and 
may  enforce  his  lien  in  like  manner  as  if  the  property  was 
pledged   to   him  for  the   price.— (C.   C.   3046-49.) 

35  Q. — What  is  a  lien  on  real  property? 

A. — A  lien  on  real  property  is  a  charge  imposed  upon  specific  property 
by  which  it  is  made  security  for  the  performance  of  an  act. — 
C.  C.  2872.) 

36  Q. — How  long  does  a  vendor's  lien  run? 

A. — The  same  as  a  written   instrument — 4  years. — (C.   C.   3046.) 

37  Q. — What  is  stoppage  in  transit? 

A. — It  is  the  right  of  a  seller  or  consignor  of  property,  whose  claim 
for  its  price  or  proceeds  has  not  been  extinguished,  has,  upon 
the  insolvency  of  the  buyer  or  consignee  becoming  known  to 
him  after  parting  with  the  property,  to  stop  it  while  on  its 
transit  to  the  buyer  or  consignee,  and  resume  possession  thereof. 
— (C.  C.  3076.) 

38  Q. — When  and  where  stopped? 

A. — It  can  be  effected  only  by  notice  to  the  carrier  or  depositary  of  the 
property,  or  by  taking  actual  possession  thereof. — C.   C.   3079.) 

39  Q. — Of  what  does  the  civil  code  treat? 

A. — It  is  divided  into  four  parts:  The  first  part  relating  to  persons; 
the  second  to  property;  the  third  to  obligations;  and  the  fourth, 
general  provisions  relating  to  the  three  preceding  divisions. — 
C.  C.  1.) 

40  Q. — What  are   domestic  relations? 

A. — Domestic  relations  are  those  relations  existing  between  husband 
and  wife,  parent  and  child,  guardian  and  ward,  master  and 
servant. —  (Long.) 

41  Q. — What  is  a  public  corporation? 

A. — It  is  one  formed  or  organized  for  the  government  of  a  portion  of 
the  State.— C.  C.  284.) 

42  Q. — What  is  a  corporation  sole? 

8 


A. — A  corporation  sole  consists  of  a  single  person  and  his  succfisors, 
who  is  made  a  body  corporate  and  politic  in  order  to  give  him 
legal  capacities  and  advantages,  particularly  that  of  perpetuity, 
which,  in  his  natural  person,  he  could  not  have  had. — (Black- 
stone.) 

43  Q. — What  is  the  governing  body  of  a  corporation! 
A.— The  directors.— (C.  C.  305.) 

44  Q. — Who  elects  the  directors? 
A.— The  stockholders.— (C.  C.  307.) 

45  Q. — What  is  a  mortgage? 

A. — A  mortgage  is  a  contract  in  writing  by  which  specific  property 
is  hypothecated  for  the  performance  of  an  act,  without  the 
necessity  of  a  change  of  possession. — (C.  C.  2920.) 

46  Q. — What  is  a  pledge? 

A. — It  is  the  deposit  of  personal  property  by  way  of  security  for  the 
performance  of  another  act. — (C.  C.  2987.) 

47  Q. — What  is  a  common  carrier? 

A. — Every  one  who  offers  to  the  public  to  carry  persons,  property, 
messages,  excepting  only  telegraphic  messages,  is  a  common 
carrier  of  whatever  he  thus  offers  to  carry. — (C.  C.  2168.) 

48  Q. — What  are  his  duties? 

A; — A  common  carrier  must,  if  able  to  do  so,  accept  and  carry  whatever 
is  offered  to  him,  at  a  reasonable  time  and  place,  of  the  kind  he 
undertakes  or  is  accustomed  to  carry,  and  he  must  exercise  due 
care.— (C.  C.  2169.) 

49  Q. — What  is  community  property? 

A. — It  is  property  acquired  by  husband  and  wife,  or  either,  during 
marriage,  when  not  acquired  as  the  separate  property  of  either. 
— (C.  C.  164.) 

50  Q. — How  is  a  will  executed  in  this  State? 

A. — Every  will  other  than  a  nuncupative  or  olographic  will  must  be 
executed  and  attested  as  follows:  Ist.  It  must  be  subscribed 
at  the  end  thereof  by  the  testator  himself,  or  some  person  in 
his  presence  and  by  his  direction  must  subscribe  his  name 
thereto;  2nd,  the  subscription  must  be  made  in  the  presence 
of  the  attesting  witnesses,  or  be  acknowledged  by  the  testator 
to  them  to  have  been  made  by  him  or  by  his  authority;  3rd,  the 
testator  must,  at  the  time  of  subscribing  or  acknowledging  the 
same,  declare  to  the  attesting  witnesses  that  the  instrument 
is  his  last  will  and  testament;  and  4th,  there  must  be  two 
attesting  witnesses,  each  of  whom  must  sign  the  same  as  a 
witness,  at  the  end  of  the  will,  at  the  testator's  request  and  in 
his  presence.- (C.  C.  1276.) 
51     Q. — What  is  an  olographic  will? 


A. — It  is  a  will  that  is  entirely  written,  dated  and  signed  by  the 
hand  of  the  testator  himself  and  need  not  be  witnessed. — (C.  C. 
1277.) 

-What  is  evidence? 

-Judicial  evidence  is  the  means,  sanctioned  by  law,  of  ascertaining 

in  a  judicial  proceeding,  the  truth  respecting  a  question  of  fact. 

— (C.  C.  P.  1823.) 

-How  many  kinds  of  evidence  are  there! 

-There  are  four  kinds:  1st.  The  knowledge  of  the  court.  2nd.  The 
testimony  of  witnesses.  3rd.  Writings,  and  4th.  Other  material 
objects  presented  to  the  senses. — (C.  C.  P.   1827.) 

-Give  degrees  of  evidence. 

-Primary,  secondary,  direct,  indirect,  prima  facie,  partial,  satisfac- 
tory, indispensable   and  conclusive. — (C.   C.  P.   1828.) 

-What  is  indispensable  evidence? 

-It  is  evidence  that  without  which  a  particular  fact  cannot  be 
proved.— (C.  C.  P.  1836.) 

-What  is  secondary  evidence? 

-It  is  that  which  is  inferior  to  primary  evidence,  as  a  copy  of  an 
instrument;  oral  evidence  of  its  contents  is  secondary  evidence 
of   the  terms  of  a  written  instrument. — (C.   C.  P.   1830.) 

-What  is  primary  evidence? 

-Primary  evidence  is  that  which,  under  every  possible  circumstance, 

affords  the  greatest  certainty  of  the  fact  in  question. — (C.  C.  P. 

1829.) 
-What  is  the  action  of  claim  and  delivery? 
-It  is  an  action  for   the   recovery  of   personal   property  which   is 

unlawfully  detained,  or  for  the  value  thereof. — (C.  C.  P.  509.) 
-What  is  a  judgment? 
-A  judgment  is  the  final  determination  of  the  rights  of  the  parties 

in  an  action  or  proceeding. — (C.  C.  P.  577.) 
-What  is  an  execution? 
-It  is  a  writ  issued  for  the  enforcement  of  a  judgment  within  a 

prescribed   time   after  the   entry   thereof. — (Bouvier.) 
-What  is  an  attachment? 
-It  is  a  writ  directed  to  the  sheriff  of  any  county  in  which  property 

of  a  defendant  may  be,  and   must   require  him  to   attach   and 

safely  keep  all  the  property  of  such  defendant  within  his  county, 

or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 

demand,  the  amount  of  which  must  be  stated  in  conformity  with 

the  complaint.— (C.   C.  P.  540.) 
62     Q.— What  is  a  writ? 

A. — A  writ  signifies  an  order  or  precept  in  writing,  issued  in  the  name 

of  the  people,  of  a  court,  or  judicial  officer. — (C.  C.  P.  17.) 

10 


52 

Q.- 

A. 

53 

Q- 

A. 

54 

Q- 

A. 

55 

Q- 

A. 

56 

Q. 

A. 

57 

Q- 

A. 

58 

Q. 

A. 

59 

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60 

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61 

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03 

Q 

A 

64 

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A 

65 

Q 

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66 

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A 

67 

Q. 

A, 

68 

Q- 

A 

-Name   some  writs. 

-Writs  of  mandamus,  certiorari,  prohibition,  quo  warranto,  habeas 
corpus,  injunction,  attachment,  assistance,  replevin  and  pos- 
session. 

-What  is  a  writ  of  prohibition? 

-A  writ  of  prohibition  arrests  the  proceedings  of  any  tribunal, 
corporation,  board,  or  person,  whether  exercising  functions 
judicial  or  ministerial,  when  such  proceedings  are  without  or 
in  excess  of  their  respective  jurisdiction. — (C.  C.  P.   1102.) 

-What  is  a  writ  of  assistance? 

-It  is  a  writ  commanding  the  sheriff  to  eject  the  defendant  from 
certain  lands  and  put  the  plaintiff  in  possession  thereof. — 
(Bouvier.) 

-What  is  a  writ  of  possession? 

-It  is  a  writ  of  execution  employed  to  enforce  a  judgment  to  recover 
the  possession  of  land. — (C.  C.  P.  682.) 

-Who  is  the  defendant? 

-A  defendant  is  any  person  against  whom  an  action  is  brought. 

-What  is  a  jury? 

-It  is  a  body  of  men  temporarily  selected  from  the  citizens  of  a 
particular  district  and  invested  with  power  to  present  or  indict 
a  person  for  a  public  offense,  or  to  try  a  question  of  fact. — 
(C.  C.  P.  190.) 

-What  kind  of  juries  are  there? 

-Juries  are  of  three  kinds,  viz.:  Grand  Jury,  Trial  Jury  and  Jury 
of  Inquest.— (C.  C.  P.  191.) 

-What  do  you  mean  by  a  Grand  Jury? 

-It  is  a  body  of  men,  nineteen  in  number,  returned  in  pursuance  of 
law  from  the  citizens  of  a  county,  or  city  and  county,  before  a 
court  of  competent  jurisdiction,  and  sworn  to  inquire  of  public 
offense  committed  or  triable  within  the  county,  or  city  and 
county.— (C.   C.   P.   192.) 

71  Q. — What  do  you  mean  by  a  Trial  Jury? 

A. — It  is  a  body  of  men  returned  from  the  citizens  of  a  particular 
district  before  a  court  or  officer  of  competent  jurisdiction,  and 
sworn  to  try  and  determine  by  verdict  a  question  of  fact. — 
C.  C.  P.  193.) 

72  Q.— What  is  a  Jury  of  Inquest? 

A. — It  is  a  body  of  men  summoned  from  the  citizens  of  a  particular 
district  before  the  sheriff,  coroner  or  other  ministerial  officer 
to  inquire  of  particular  facts. — (C.  C.  P.  195.) 

73  Q. — How  is  a  jury  summoned  and  selected? 

A. — A  sufficient  number  of  names  of  citizens  of  the  county  to  act  as 
jurymen  for  the  ensuing  year  are  taken  from  the  assessment  roll 
of  said  county  by  order  of  court,  and  placed  in  the  jury  box  and 

11 


69 

Q. 

A. 

70 

Q- 

A. 

are  drawn  therefrom,  one  at  a  time,  until  the  venire  is  filled; 
they  are  then  summoned  by  the  sheriff  to  attend  the  court  at 
the  opening  of  the  regular  session  thereof,  or  at  such  session 
as  the  court  may  order,  by  giving  a  personal  notice  to  each  of 
them  or  leaving  a  written  notice  to  that  effect  at  his  place  of 
residence  with  some  person  of  proper  age;  then  he  shall  return 
the  list  to  the  court,  specifying  the  names  of  those  who  were 
summoned  and  the  manner  in  which  each  jjcrson  was  notified. — 
(C.  C.  P.  204.) 

74  Q. — What  are  some  of  the  qualifications  of  jurors? 

A. — He  must  be  a  citizen  of  the  United  States,  of  the  age  of  twenty-one 
years,  a  resident  of  the  State  one  year  and  of  the  County  ninety 
days  before  being  selected  and  returned,  in  possession  of  his 
natural  faculties,  of  ordinary  intelligence,  possessed  of  a  suffi- 
cient knowledge  of  the  English  language,  and  assessed  on  the 
last  assessment  roll  of  the  county  on  property  belonging  to  him. 
— (C.    C.    P.    198.) 

75  Q. — What  is  a  new  trial? 

A. — A  new  trial  is  a  re-examination  of  an  issue  of  fact  in  the  same 
court  after  a  trial  and  decision  by  a  jury  or  court  or  by  a 
referee.— (C.   C.  P.  656.) 

76  Q. — How  are  ex-contractu  actions  divided? 

A. — They  are  divided  into  actions  of  assumpsit,  debt,  covenant  and 
detinue. — (Perry.) 

77  Q. — How  are  ex-delicto  actions  divided? 

A. — They  are  divided  into  actions  of  trover,  replevin,  trespass,  eject- 
ment and   trespass  on  the  case. — (Perry.) 

78  Q. — What  is  determined  in  ejectment? 
A. — Eight   of   possession. — (Blackstone.) 

79  Q. — At  common  law,  who  was  plaintiff  in  an  action  of  ejectment? 
A. — The  ejected  termor. — (Gould.) 

80  Q. — How  are  Blackstone 's  Commentaries  divided? 

A. — They  are  divided  into  the  rights  of  persons,  rights  of  things, 
private  wrongs,  and  public  wrongs. —  (Blackstone.) 

81  Q. — What  are  private  wrongs? 

A. — Private  wrongs  are  an  infringement  or  privation  of  the  private 
or  civil  rights  of  individuals,  and  are  frequently  termed  civil 
injuries. — (Blackstone.) 

82  Q. — What  are  remedies  for  private  wrongs? 

A. — By  application  to  courts  of  justice  by  a  civil  action. — (Black- 
stone.) 

83  Q. — What  are  remedies  for  public  wrongs? 

A. — By  application  of  courts  of  justice  by  a  criminal  action. — (Black- 
stone.) 

12 


84 

Q 

A 

85 

Q. 

A 

8G 

Q- 

A 

87 

Q- 

A. 

88 

Q- 

A, 

89 

Q- 

A. 

90 

Q- 

A. 

91 

Q- 

A. 

92 

Q- 

A. 

93 

Q- 

A. 

-Wliat  is  the  first  paper  filed  in  bringing  an  action? 

-The  coniplaiut.— (C.   C.  P.  405.) 

-What  work  on  evidence  have  you  read? 

-"Greenleaf  on  Evidence." 

-Of  what  does  the  Supreme  Court  of  the  United  States  consist? 

-One    Chief   Justice   and    eight    Associate   Justices. —  (U.    S.    Cons.) 

-How  are  they  selected? 

-They  are  appointed  for  life  (during  good  behavior)  by  the  Presi- 
dent of  the  United  States,  and  the  appointment  is  confirmed  by 
the  United  States  Senate. — (U.  S.   Cons.) 

-Name  some  of  the  ex-Supreme  Justices? 

-Morrison  R.  Waite,  Salmon  P.  Chase,  Roger  B.  Taney,  John  Mar- 
shall, John  Jay,  Oliver  Ellsworth,  William  Cushing,  John  Rut- 
ledge  and  John  Jay. 

-Who  is  the  present  Chief  Justice? 

-Melville  W.  Fuller,  appointed  July  20,  1888. 

-Who  was  the  first  President  of  the  United  States? 

-George  Washington — 17S9-1797. 

-How  many  amendments  to  the  constitution  of  the  United  States? 

-Fifteen.— (U.  S.  Cons.) 

-What  is  the  subject-matter  of  the  Fifteenth  Amendment? 

-The  elective  franchise  shall  not  be  denied  or  abridged  by  tlic 
United  States,  or  by  any  State  on  account  of  race,  color  or  pre- 
vious  condition  of  servitude. — (U.   S.   Cons.) 

-W^hat  is  the  subject-matter  of  the  Fourteenth  Amendment  ? 

-It  forbids  any  State  to  make  laws  which  will  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process  of  law;  or  to 
deny  any  person  within  its  jurisdiction  the  equal  protection  of 
the  law.  (2)  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  number,  counting 
the  whole  number  of  persons  in  such  state,  excluding  Indians 
not  taxed  and  persons  convicted  of  crime.  (3)  It  prohibits 
any  person  from  becoming  a  United  States  Senator,  Representa- 
tive in  Congress,  Presidential  Elector,  or  hold  any  office,  civil  or 
military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath  as  a  member  of  Congress  or  an 
officer  of  the  United  States,  or  as  a  legislative,  executive,  or 
judicial  officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  and  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemy  thereof. 
(4)  It  validitates  the  public  debt  of  tJie  United  States  as  author- 
ized by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
and  prohibits  the  United  States  or  any  State  to  assume  or  pay 
any  debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion 

13 


against  the  United  States  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave. — (U.  S.  Cons.) 

94  Q. — Who  was  Blackstone. 

A. — Sir  William  Blackstone  was  born  in  Cheapside,  London,  July  10, 
1723,  and  died  February  14,  1780.  He  was  the  third  son  of  a  silk 
manufacturer;  was  educated  at  Oxford;  enterd  the  bar  in  1746; 
was  a  member  of  Parliament,  a  professor  at  Oxford  and  a  Judge 
of  the  Court  of  Common  Pleas.  He  wrote  what  is  known  as 
'  *  Blackstone 's  Commentaries. ' ' — (Blackstone.) 

95  Q. — When  was  the  Constitution  of  California  adopted. 

A. — The  present  constitution  was  adopted,  in  convention  at  Sacramento, 
March   3,   1879,   and  ratified  by  the   people   May   7,   1879. — Cal. 
Cons.) 
90     Q. — What  is  a   constitution. 

A. — It  is  the  organic  and  fundamental  law  of  the  nation  or  state, 
which  may  be  written  or  unwritten,  establishing  the  character 
and  conception  of  its  government. — (Robinson.) 

-Where  do  we  find  the  law  of  California. 

-It  is  embodied  in  the  constitution,  codes,  statutes  and  the  decisions 
of  the  Supreme  and  District  Courts  of  Appeal  and  Common  Law. 

-What  are  the  four  essential  parts  of  law? 

-(1)  Declaratory,  (2)  Directory,  (3)  Eemedial,  and  (4)  Vindica- 
tory.— (Blackstone.) 

-Do  we  have  common  law  in  this  State. 

-We  do  not,  except  where  the  codes  and  statutes  are  silent  in  civil 
law  only. — C.  C.  5.) 

-What  is  murder? 

-Murder  is  the  unlawful  killing  of  a  human  being,  with  malice 
aforethought.— P.  C.  187.) 

-What  is  Corpus  Delecti? 

-It  is  the  body  of  a  crime;  the  substance  or  foundation  of  a  crime; 

the     substantial    fact     that    a     crime     has     been     committed. — 

(Bouvier.) 

-Eos  Gestae? 

-The    things    done:     The    essential    circumstances    surrounding    the 

subject. — (Bouvier.) 
-What  is  a  court? 

-It  is  the  place  where  justice  is  judicially  administered. — (Black.) 
-What  courts  have  we  in  California? 
-Court  of  Impeachment,  the  Supreme  Court,  the  District  Court  of 

Appeal,  Superior  Court,  Justice   Court,  Police  Courts  and   such 

other   inferior   courts   as    the   legislature   may    establish   in    any 

incorporated  city  or  town. — (C.   C.  P.  33.) 
105     Q. — What  is  the  jurisdiction  of  the  Court  of  Impeachment. 

14 


97 

Q.- 
A. 

98 

A. 

99 

A. 

100 

A. 

101 

A. 

102 

Q-- 

A.- 

103 

A. 

104 

A. 

A. — It  has  jurisdiction  to  try  impeachments  when  presented  by  the 
assembly,  of  any  of  the  State  officers,  Judges  of  the  Supreme, 
Appellate  and  Superior  Courts  for  any  misdemeanor  in  office, — 
(C.  C.  P.  37.) 

106  Q. — Of  what  does  it  consist. 

A. — It  consists  of  the  members  of  the  Senate. — (C.  ('.  P.  30.) 

107  Q. — Who  presides  over  it. 

A. — The  regular  officers  of  the  Senate  are  the  officers  of  the  court. — 
(C.  C.  P.  38.) 

108  Q. — What  is  an  indictment? 

A. — An  indictment  is  an  accusation  in  writing,  presented  by  the  Grand 
Jury  to  a  competent  court,  charging  a  person  with  a  public 
offense.— (P.  C.  917.) 

109  Q. — What  is  a  non-suit, 

A. — The  dismissal  of  an  action  first  by  the  plaintiff  himself,  upon 
payment  of  costs  at  any  time  before  trial;  second,  by  either 
party  upon  the  written  consent  of  the  other;  third,  by  the 
court  when  the  plaintiff  fails  to  appear  on  the  trial  and  defendant 
being  present  asks  for  dismissal;  fourth,  by  the  court  when, 
during  the  process  of  trial,  the  plaintiff  abandons  it;  fifth,  by 
the  court  upon  motion  of  the  defendant  when  upon  trial  tho 
plaintiff  fails  to  prove  a  sufficient  case  for  the  jury;  sixth,  by 
the  court  when,  after  a  verdict,  the  party  entitled  to  judgment 
neglects  to  demand  and  have  the  same  entered  for  more  than  six 
months.— (C.  C.  P.  581.) 

-What  is  a  special  verdict? 

-A  special  verdict  is  that  in  which  the  jury  find  the  facts  only, 
leaving  the  judgment  to  the  court. — (C.  C.  P.  62-i.) 

-What  is  a  general  verdict? 

-A  general  verdict  is  one  which  a  jury  pronounces  generally  upon 
all  or  any  of  the  issues,  either  in  favor  of  the  plaintiff  or 
defendant.— (C.  C.  P.  624.) 

-Who  tries  issues  of  law? 

-The  court.— C.  C.  P.  591.) 

-W^ho  tries  issues  of  fact? 

-The  jury,  except  equity  cases  and  where  jury  trial  is  waived; 
then  the  court.— (C.  C.  P.  592.) 

-How  is  an  issue  of  fact  raised? 

-By  answer.- (C.  C.  P.  590.) 

-How  is  an  issue  of  law  raised  ? 

-By  demurrer.— (C.  C,  P,  589.) 

-What  is  a  code? 

-A  code  is  a  collection  or  compendium  of  laws  scientifically  arranged 
and   promulgated   by  legislative   authority. — (Black.) 
117     Q.— Who  formed  the  first  code? 

15 


110 

Q 

A 

111 

Q 

A 

112 

Q 

A 

113 

Q 

A 

114 

Q. 

A 

115 

Q. 

A 

116 

Q. 

A 

-It  was  formed  by  Tribonian,  under  the  direction  of  Emperor 
Justinian. —  (Blackstouc.) 

-V\'lio  was  Justinian? 

-He  was  a  Eoman  Emperor  about  A.  D.  533. 

-Have  we  dower  in  Uiis  State? 

-We  have  not. 

-If  you  found  a  juror  not  qualified  what  would  you  do? 

-Challenge  him. 

-What  kind  of  challenges  are  there? 

-Challenge  to  the  array  and  to  the  poll.  Challenges  to  the  poll  are 
divided  into  two  kinds — peremptory  and  for  cause. — (C.  C.  P. 
601.) 

-How  is  the  President  of  the  United  States  elected? 

-By  a   majority  vote  of  the   Electoral   College. — (U.   S.   Cons.) 

-How  many  electors  are  there? 

-Each  State  furnishes  to  the  Electoral  College  as  many  Presidential 
Electors  as  it  has  Eepresentatives  and  Senators  in  Congress. — 
(U.   S.   Cons.) 

-Of  what  does  Congress  consist? 

-It  consists  of  the  House  of  Eepresentatives  and  the  United 
States  Senate. — (U.  S,  Cons.) 

-How  are  they  elected? 

-United  States  Senators  are  elected  by  the  legislatures  of  the  sev- 
eral States  which  they  represent.  Eepresentatives  are  elected 
by   the   direct   vote   of   the   people. — (U.    S.    Cons.) 

-How  do  laws  originate  in  Congress? 

-By  measures  presented  in  either  house  by  any  member  thereof, 
except  revenue  bills,  which  must  originate  in  the  House  of 
Eepresentatives. — (U.  S.  Cons.) 

-What  are  the  different  departments  of  government  in  this  State? 

—They    are    the    legislative,    executive    and    judicial. — (Cal.    Cons.) 

-What  action  at  common  law  corresponds  to  claim  and  delivery? 

-An  action  of  replevin.— (C.  C.  P.  509.) 

-What  is  a  treaty? 

—In  international  law,  it  is  an  agreement  between  two  or  more 
nations  or  independent  states  and  solemnly  ratified  by  the 
several  sovereigns  or  the  supreme  power  of  each  State. — (Black- 
stone.) 

130  Q. — When  were  the  codes  adopted  in  California? 

A. — They  were  adopted  January  1,  1873,  at  12  o'clock  noon. — (C.  C.  2.) 

131  Q. — What  system  of  law  had  we  prior  to  the  code? 
A. — Common  law  and   statutes. 

132  Q.— What  is  a  deed? 

A. — It  is   an  instrument  in  writing  between  parties  capable   of   con- 
tracting,   subscribed,    sealed    and    delivered. — (Blackstone.) 

16 


lis 

Q- 

A. 

119 

Q-- 

A. 

120 

Q. 

A. 

121 

Q- 

A. 

122 

Q- 

A. 

123 

Q. 

A. 

124 

Q- 

A. 

125 

Q. 

A. 

126 

Q- 

A 

127 

Q- 

A 

128 

Q- 

A 

129 

Q 

A 

133 

Q. 

A. 

134 

Q- 

A. 

135 

Q- 

A. 

136 

Q- 

A. 

137 

Q- 

A. 

138 

Q- 

A.- 

139 

Q- 

A. 

140     Q.- 
A. 


141 

Q- 

A 

142 

Q- 

A 

143 

Q 

A 

144     Q 


-What  is  a  quit-claim  deedf 

-It  is  a  deed  of  convej'ance  operating  by  way  of  release,  not  contain- 
ing any  warranty  or  t-ova-nants  of  title. — (Blackstone.) 

-What  is  a  grant? 

-Grant  includes  all  transfers  in  writing  whereby  one  person  conveys 
propertj^   to   another. — (C.    C.    1053.) 

-What  title  does  a  grant  convey V 

-It  conveys  all  the  actual  title  to  the  thing  which  the  grantor  has 

unless  a  difforcnt  intention  is  expressed  or  is  necessarily  implied. 

— (C.  C.  1083.) 

-What  is  a  letter  of  credit? 

-A  letter  of  credit  is  a  written  instrument,  addressed  by  one  person 

to  another,  requesting  the  latter  to  give  credit  to  the  person  in 

whose  favor  it  is  drawn. — (C.  C.  2858.) 

-What   is  the   difference  between   a   mortgage   at   common  law  and 

in  this  State? 
-At  common  law  mortgagee  held  possession  and  mortgagor  had  no 

equity   of   redemption   after   default. — (Dunlap.) 

-What  is  the  difference  between  a  pledge  and  a  mortgage  of  personal 

property? 
-Pledgee  has  possession;  mortgagee  does  not. — (Dunlap;  C.  C.  2988; 

C.  C.  2927.) 

-What  arc  the  pleadings  in  this  State? 

-By  the  plaintiff:  complaint,  demurrer  to  the  answer,  demurrer  to 
cross-complaint  and  answer  to  cross-complaint.  By  the  de- 
fendant: demurrer  to  complaint,  answer,  cross-complaint  and 
demurrer  to   answer  to   cross-complaint. — (C.   C.   P.   422.) 

-What  were  some  of  the  privileges  and  disabilities  of  a  corporation 
at  common  law? 

-At  common  law  it  cannot  maintain  or  be  made  defendant  in  a 
battery  or  like  personal  actions,  nor  commit  crime  in  its  cor- 
porate capacity;  it  cannot  be  an  executor  or  perform  any  personal 
duties;  it  cannot  be  seized  of  lands  to  the  use  of  another;  nor 
can   it   be   committed   to    prison,    outlawed   or   excommunicated. 

-What  is  cumulative  evidence? 

-It  is  additional  evidence  of  the  same  character  to  the  same  point. 
— (C.   C.  P.   1838.) 

-What  is  corroborative  evidence? 

-It  is  additional  evidence  of  a  different  character  to  the  same 
point.— (C.   C.  P.   1839.) 

-What  is  conclusive  evidence? 

-It  is  evidence  that  which  tlie  law  does  not  permit  to  be  contra- 
dicted.—(  C.  C.  P.  1837.) 

-What  is  hearsay  evidence? 

17 


145 

Q- 

A. 

146 

Q. 

A. 

147 

Q- 

A. 

148 

Q. 

A. 

149 

Q. 

A 

150 

Q- 

A 

151 

Q- 

A 

A. — It  is  that  which  does  not  derive  its  value  solely  from  the  credit 
of  the  witness,  but  rests  mainly  on  the  veracity  and  competency 
of  other  persons.— (C.  C.  P.  1845.) 

-What   is   circumstantial   evidence. 

-It  is  evidence  directed  to  the  attending  circumstances  hy  which 
the  principal  fact  may  be  concluded  by  necessary  law  of  reason- 
ing.—(C.  C.  P.   1832.) 

-What  is  Res  Adjudicata? 

-It  is  the  matter  adjudged.  A  thing  judicially  acted  upon  or 
decided. — (Blackstone.) 

-What  is  Stare  Decisis? 

-It  is  to  stand  by  decided  cases;   to  uphold   precedent. — (Black.) 

-What  is  an  attorney  at  law? 

-An  officer  in  a  court  of  Justice,  who  is  employed  bj^  a  party  in 
a  cause  to  conduct  the  same  for  him. — (Parker.) 

-Do  courts  have  terms  in  California? 

-They  do  not. — (Cord.) 

-Did  they  have  terms  at  common  law? 

-They  did.— (Cord.) 

-What  is  meant  by  a  non-judicial  day? 

-They  are  the  days  when  no  judicial  business  can  be  transacted, 
except,  first,  to  give  upon  their  request,  instructions  to  a  jury 
when  deliberating  on  their  verdict;  second,  to  receive  a  verdict 
or  discharge  a  jury;  third,  for  the  exercise  of  the  powers  of  a 
magistrate  in  a  criminal  action,  or  in  proceedings  of  a  criminal 
nature.  Provided  that  the  Supreme  Court,  District  Court  of 
Appeal  and  Superior  Courts  shall  always  be  open  for  the  trans- 
action of  business;  and  provided  further,  that  injunctions  and 
writs  of  prohibition  may  be  issued  and  served  on  any  day. — 
(C.  C.  P.  134.) 
152     Q. — What  are  the  non-judicial  days? 

A. — Every  Sunday,  January  1,  February  22,  May  30,  .July  4,  September 
9,  first  Monday  in  September,  the  day  set  apart  as  Thanksgiving, 
December  25;  any  day  upon  which  an  election  is  held  throughout 
the  State,  any  day  set  apart  by  the  Governor  of  this  State, 
and  every  Saturday  afternoon. — (C.  C.  P.  10.) 

-What  were  the  pleadings  or  orderly  parts  of  a  suit  at  common  law? 

-(l)Declaration.  (2)  Plea.  (3)  Eeplication.  (4)  Rejoinder.  (5) 
Sur-rejoinder.      (6)    Rebutter,    and    (7)    Sur-rebutter. — (Gould.) 

-What  was  the  action  of  debt? 

-It  was  an  action  in  form  ex  contractu  for  the  recovery  of  a  specific 
sum  of  money. — (Blackstone.) 

-What  was  the  action  of  covenant? 

-It  was  an  action  for  the  recovery  of  damagase  for  the  breach 
of  a   covenant,  or  contract  under  seal. — (Blackstone.) 

18 


153 

Q. 

A 

154 

Q- 

A 

155 

Q 

A 

156  Q. — Wh.it  was  the  action  of  dctinucf 

A. — It  \t;i3  an  action  for  tlio  recovery  of  personal  chattels  in  specie. — 
(Blackstone.) 

157  Q. — What  was  the  action  of  trover? 

A. — An  action  for  damages  against  a  person  who  refused  to  deliver 
goods  upon  demand  to  the  owner,  but  converted  them  to  his 
own  use:   the  gist  of  the  action  was  the  conversion. — (Perry.) 

158  Q. — What  was  the  action  of  replevin? 

A. — It  was  a  personal  action  ex  delicto  brought  to  recover  possession 
of  goods  unlawfully  taken. — (Dunlap.) 

159  Q. — What  was  the  action  of  trespass! 

A. — It  was  an  action  for  damages  for  any  unlawful  injury  done  to 
the  plaintiff,  in  respect  either  to  his  person,  property  or  rights, 
by  the  immediate  force  and  violence  of  the  defendant. — (Dun- 
lap.) 

160  Q. — What  is  an  issue? 

A. — It  is  a  fact  or  conclusion  of  law  maintained  by  one  party,  and 
controverted  by  the  other.— (C.  C.  P.  588.) 

161  Q. — What  is  meant  by  joining  issue? 

A. — It  is  an  affirmation  on  one  side,  met  by  a  denial  on  the  other. — 
(Black.) 

162  Q.— What  are  compurgators? 

A. — They  are  neighbors  of  a  person  accused  of  a  crime,  or  charged 
as  a  defendant  iu  a  civil  action,  who  appear  and  swear  they 
believe  him  on  his  oath. — (Blackstone.) 

163  Q.— What  is  a  trial? 

A. — It  is  the  examination  of  the  matter  of  fact  put  in  issue. — 
(Bouvier.) 

164  Q. — What  kind  of  trials  were  there  at  common  law? 

A. — Trials  by  record,  by  inspection  or  examination,  by  certificate,  by 
witnesses,  by  wager  of  battle,  by  wager  of  law  and  by  jury. 
— (Blackstone.) 

165  Q. — Where  did  trial  by  jury  originate? 

A. — It  was  instituted  by  Henry  II.  to  do  away  with  the  barbaroug 
custom  of  dueling. — (Blackstone. 

166  Q. — What  is  meant  by  the  execution  of  a  judgment? 

A. — It  is  the  putting  the  sentence  of  law  in  force. — (Blackstone.) 

167  Q. — How  do  you  compel  the  attendance  of  a  witness? 

A. — By  serving  him   with   a   subpoena. — (C.   C.   P.   1985.) 

168  Q. — How  would  you  serve  a  subpoena? 

A. — It  is  served  by  showing  the  original  and  delivering  a  copy  to  the 
witness  personally. — (C.  ('.  P.  1987.) 

169  Q. — How  would  you  serve  a  summons? 

A. — It  is  served  by  the  sheriff  of  the  county  where  the  defendant  is 
found  or  by  any  other  person  over  18  years  of  age  not  a  party 

19 


to  the  action.  A  copy  of  the  complaint  must  be  served  with  a 
copy  of  the  summons.  When  the  summons  is  served  it  must  be 
returned  to  the  office  of  the  clerk  from  which  it  issued  with  an 
afiidavit  of  such  person  of  its  service  and  of  the  service  of  a  copy 
of  the  complaint.— (C.  C.  P.  410.) 

170  Q. — What  is  an  alias  summons? 

A. — It  is  a  summons  in  the  same  form  as  the  original  issncd  by  tiie 
clerk,  upon  demand  of  the  plaintiff,  when  the  original  has  been 
returned  without  being  served  on  all  the  defendants,  or  has  been 
lost;  it  must  be  issued  within  one  year  after  the  filing  of  the 
complaint.— (C.  C.  P.  408.) 

171  Q. — How  would  you  serve  a  corporation? 

A. — By  serving  its  President  or  other  head  of  the  corporation,  Secretary, 
Cashier,  or  managing  agent  thereof,  in  the  same  manner  as 
serving  an  individual. — (C.  C.  P.  411.) 

172  Q. — How  may  an  attachment  issue? 

A. — It  may  issue  in  an  action  upon  a  contract,  express  or  implied, 
for  the  direct  payment  of  money,  where  the  contract  is  not 
secured  by  any  mortgage  or  lien  upon  such  property,  or  in  an 
action  against  a  defendant,  not  residing  in  this  State,  to  recover 
a  sum  of  money,  as  damages  arising  from  an  injury  to  property 
in  this  State,  in  consequence  of  negligence,  fraud  or  other 
wrongful  act.— (C.  C.  P.  527.) 

-What  was  the  W^itena-gemot? 

-An  early  Anglo-Saxon  court.  Term  signified  a  meeting  of  wise 
men. — (Black.) 

-What  was  the  court  baron? 

-It  is  a  court  incident  to  every  manor  of  the  Kingdom,  to  be  holden 
by  the  steward  within  the   said  manor. — (Blackstone.) 

-What  was  the  jurisdiction  of  the  Court  of  Common  Pleas? 

-Its  jurisdiction  was  for  the  trial  of  all  matters  of  law  arising  in 
civil  cases,  whether  real,  personal  or  mixed. — (Blackstone.) 

-What  was  the  jurisdiction  of  the  Court  of  Kings  Bench? 

-The  court  of  King 's  Bench  had  exclusive  jurisdiction  in  all  matters 
of  a  criminal  nature  and  was  also  a  court  of  appeal  from  the 
court  of  common  pleas. — (Blackstone.) 

-What  was  the  jurisdiction  of  the  Court  of  Chancery? 

-In  matters  of  civil  property,  it  was  the  most  important  of  any  of 
the  King's  superior  and  original  courts  of  justice.  It  was  the 
court   of   equity. — (Blackstone.) 

-What  was  the  jurisdiction  of  the  Court  of  Exchequer? 

-Its  duties  were  to  order  the  revenues,  collect  the  debts  and  duties 
of  the  crown. — (Blackstone.) 

-How  did  the  Court  of  Chancery  derive  its  name? 

-From  the  Judge  or  Lord  Chancellor  who  presided  over  it. — (Black- 
stone.) 

20 


173 

Q.- 

A. 

174 

Q.- 

A. 

175 

Q. 

A. 

176 

A. 

177 

A. 

178 

A. 

179 

Q. 

A. 

180  Q. — What  is  meant  by  Courts  of  Assize  and  Nisi  Prius? 

A. — They  were  composed  of  two  or  more  commissioners,  wlio  were  twice 
a  year  sent  by  the  King  over  the  Kingdom  to  try  certain  cases 
by  jury. — (Blackstone.) 

181  Q. — What  is  the  highest  court  in  England! 
A. — The  House  of  Peers. — (Blackstone.) 

182  Q. — What   is   its  jurisdiction? 

A. — It  has  no  original  jurisdiction,  but  only  upon  appeals  and  writs  of 
error. — (Blackstone.) 

183  Q. — What  is  an  attorney  in  fact? 

A. — It  is  a  private  attorney  authorized  by  another  to  act  in  Ids  place 
and  stead,  either  for  some  particular  purpose  or  for  the  transac- 
tion of  business  in  general,  not  of  a  legal  character. — (Black.) 

184  Q. — What  are  the  duties  of  an  attorney? 

A.— (1)  To  support  the  constitution  and  laws  of  the  United  States  an<l 
of  this  State.  (2)  To  maintain  the  respect  due  to  the  courts  of 
justice  and  judicial  officers.  (3)  To  counsel  or  maintain  such 
actions,  proceedings  and  defenses,  only  as  appear  to  him  legal  or 
just;  except  the  defense  of  a  person  charged  with  a  public 
offense.  (4)  To  never  seek  to  mislead  the  Judge  or  any  judicial 
officer  by  an  artifice  or  false  statement  of  fact  or  law.  (5)  To 
abstain  from  all  offensive  personality.  (6)  To  maintain  inviolate 
the  confidence  reposed  and  preserve  the  secrets  of  his  client. 
(7)  Not  to  encourage  either  by  commencement  or  the  continuance 
of  an  action  or  proceeding  from  any  corrupt  motive  of  passion 
or  interest,  and  (8)  Never  to  reject  for  any  consideration  per- 
sonal to  himself  the  cause  of  the  defenseless  or  the  oppressed. 
— (C.  C.  P.  282.) 

185  Q. — What  is  meant  by  the  statute  of  limitations? 

A. — It  is  the  statute  prescribing  limitations  to  the  action  on  certain 
causes  of  action;  that  is,  an  action  must  be  brought  within  a 
specified  period  after  the  right  has  accrued. — (Blackstone.) 

186  Q. — What  are  some  of  its  provisions  under  the  code? 

A. — FIVE  YEARS:  Any  action  upon  a  judgment  or  decree  of  any 
court  in  the  United  States  or  of  any  State;  or  for  Mesne  profits 
of  real  property  must  be  commenced  within  five  years. 

FOUR  YEARS:  An  action  upon  any  contract,  obligation 
or  liability  founded  upon  an  instrument  in  writing,  executed 
within  this  State  or  for  open  running  accounts,  must  be  com- 
menced within  four  years. 

THREE  YEARS:  Any  action  upon  a  liability  created  by 
statute  other  than  a  penalty  or  forfeit;  for  trespass  upon  real 
property;  or  for  taking,  detaining  or  injuring  any  goods  or 
chattels;  or  for  relief  on  the  ground  of  fraud  or  mistake,  must 
be  commenced  within  three  years. 

21 


TWO  YEAKS:  Any  action  upon  a  contract,  obligation  or 
liability  not  founded  upon  an  instrument  of  writing,  other  than 
that  mentioned  in  subdivision  Two;  or  an  action  founded  upon 
an  instrument  of  writing  executed  out  of  the  State;  must  be 
commenced  within  two  years. 

ONE  YEAR:  Any  action  upon  a  statute  for  a  penalty  or 
forfeiture,  except  wherein  the  statute  imposing  it  prescribes  a 
different  limitation,  or  for  libel,  slander,  assault  and  battery, 
false  imprisoumcut,  seduction,  or  for  injury  to,  or  for  the  death 
of  one  caused  by  the  wrongful  act  or  neglect  of  another,  or 
against  a  municipal  corporation  for  damages  or  injuries  to  prop- 
erty caused  by  a  mob  or  riot,  must  be  commenced  within  one 
year. 

SIX  MONTHS:  An  action  to  recover  any  goods,  wares, 
merchandise,  or  other  property,  seized  by  any  officer  in  his  offi- 
cial capacity,  or  to  recover  stock  sold  for  a  delinquent  assess- 
ment, must  be  commenced  within  six  months. — (C.  C.  P.  336  to 
341.) 

187  Q. — What  are  the  parties  to  a  suit  called? 
A.— Plaintiff  and   defendant.— (C.   C.  P.   308.) 

188  Q. — What  is  an  intervener? 

A. — It  is  any  person  who  voluntarily  interposes  in  an  action  or  other 
proceeding  with  the  leave  of  the  Court. — (C.  C.  P.  387.) 

189  Q. — When,  how,  and  by  whom  may  intervention  be  made? 

A. — At  any  time  before  trial  by  a  third  person  in  interest  being  per- 
mitted to  become  a  party  to  an  action  between  other  persons. — 
(C.   C.   P.   387.) 

190  Q. — How  must  an  infant  or  insane  person  appear  in  court? 

A. — They  must  appear  through  their  guardian. — (C.  C.  P.  1722.) 

191  Q. — What  is  meant  by  the  lex  loci  rei  sitae? 

A. — It  is  the  law  of  the  place  where  a  thing  is  situated. — (Dunlap.) 

192  Q. — What  is  meant  by  the  lex  loci  contractus? 

A. — It  is  the  law  of  the  jjlace  of  the  contract. — (Dunlap.) 

193  Q.— What  is  lex-fori? 

A. — The   law   of   the   place   where   the   action   is   brought. — (Bouvier.) 

194  Q. — When  does  each  govern. 

A. — An  action  on  all  immovable  or  real  property  is  governed  by  the 
lex  loci  rei  sitae,  and  all  moveables,  chattels,  etc.,  are  governed 
by  the  lex  loci   contractus,  and  all  actions  brought  before  any 
particular  court   arc   governed  by   the  lex   fori. — (Bouvier.) 
19.J     Q. — What  are  the  grounds  for  demurrer? 

A. — (1)  That  the  court  has  no  jurisdiction.  (2)  That  the  plaintiff  has 
no  legal  capacity  to  sue.  (3)  That  there  is  another  action  pending 
between  the  parties  for  the  same  cause.  (4)  That  there  is  a 
defect  or  misjoinder  of  parties  plaintiff  or  defendant.     (5)  That 

22 


several  causes  of  action  have  been  inipioiiciiy  united.     ((J)  That 

the  complaint  does  not  state  facts  sufficient  to  constitute  a  causo 

of  action,     (7)  Q'hat  the  complaint  is  ambiguous,  unintelligible  or 
uncertain.— (C.  C.  P.  430.) 

196  Q. — Wliat  is  requisite  to  the  validity  of  a  marriage  in  this  State? 
A. — It  is  consent  and  solemnization. —  (C.  C.  55.) 

197  Q. — What  is  meant  by  solemnization  of  a  marriage? 

A. — Tt  is  the  entering  into  the  marriage  contract  before  any  judge  of 
the  Supreme  Court,  .judge  of  the  Appellate  Court,  judge  of  the 
Superior  Court,  Justice  of  the  Peace,  judge  of  any  Police  Court, 
City  Recorder,  priest,  or  minister  of  the  gospel  of  any  denomina- 
tion; and  no  particular  form  is  required,  but  the  parties  must 
declare  in  the  presence  of  the  person  solemnizing  the  marriage 
that  they  take  each  other  as  husband  and  wife. — (C,  C.  70.) 

198  Q, — What   is   meant   by    the   authentication    and    recordation    of   mar- 

riage? 

A, — The  person  solemnizing  the  marriage  must  make,  sign  and  indorse 
upon,  or  attach  to,  the  marriage  license  a  certificate  showing: 
1st,  the  fact,  time  and  place  of  solemnization;  2nd,  the  names  and 
addresses  of  one  or  more  witnesses  to  the  ceremony,  and  3rd,  he 
must  file  the  license  and  certificate  with  the  County  Recorder 
within  30  days  after  the  marriage. — (C.  C.  68.) 

199  Q. — What  will  avoid  a  marriage? 

A. — By  eitlier  party  being  under  the  age  of  consent  at  time  of  marriage, 
and  not  obtaining  the  consent  of  their  parents  or  guardians.  (2) 
By  either  party  having  a  husband  or  wife  living  at  the  time  of 
marriage,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force.  (3)  If  either  party  was  of  unsound  mind  at 
the  time  of  marriage,  (4)  If  the  consent  of  either  party  was 
obtained  by  fraud  or  force,  and  (5)  That  if  either  party  was 
at  the  time  of  marriage  physically  incapable  of  entering  into 
the  marriage  state.  The  exceptions  to  the  above  causes  are  if 
the  parties  afterward  freely  cohabit  with  each  other  as  husband 
and  wife.— (C.  C.  82.) 

200  Q. — When   can   an  infant   consent   to   marriage? 

A. — In  this  State  the  male  at  the  age  of  18  years  and  female  15  years. 
— (C.  C.  56.) 

201  Q. — What  is  the  separate  property  of  the  husband  or  wife? 

A. — It  is  all  of  the  property  of  either  owned  before  marriage  and  that 
acquired  afterward  by  gift,  devise,  bequest  or  descent  or  with  the 
profits,  rents  or  issues  thereof. — (C.  C.   162,) 

202  Q. — Does  the  theory  that  a  man  and  wife  become  one  person  in  law 

•  prevail  in  this  State? 
A.— Tt  does  not.— (C,  C,  157.) 

203  Q. — Was  it  so  at  common  law  ? 
A. — It   was. — (Blackstone.) 

23 


204  Q. — Who  has  control  of  the  community  property? 
A.— The  husband.— (C.  C.  172.) 

205  Q. — Where  does  community  property  go  upon  the  death  of  husband? 

A. — One-half  goes  to  the  surviving  wife  and  the  other  half  is  subject 
to  the  testamentary  disposition  of  the  husband;  and  if  he  made 
no    disposition    of   it,   then   it   goes    to    his    descendants    equally 
according   to    their    rights    of   representation. — (C.    C.    1402.) 

206  Q. — Where  does  community  property  go  upon  the  death  of  wife? 

A. — The  entire  community  property  goes  to  the  surviving  husband; 
except  such  portion  as  may  have  been  set  apart  to  her  by  judicial 
decree  for  her  support  and  maintenance,  which  portion  is  subject 
to  her  testamentary  disposition,  and  in  the  absence  of  such 
disposition  goes  to  her  descendants,  exclusive  of  her  husband. — 
(C.  C.  1401.) 

207  Q. — Can  the  husband  dispose  of  community  property  without  the  wife's 

consent? 
A. — He  can  for  a  valuable  consideration. — (C.   C.   172.) 

208  Q.— What  is  a  homestead? 

A. — It  is  property  set  apart  by  the  head  of  a  family  or  other  persons 
as  a  home  and  must  be  actually  occupied  by  the  claimant. — 
(C.  C.  1237.) 

209  Q.— Is  it  liable  to  execution? 

A. — It  is  not  except  (1)  For  the  satisfaction  of  judgment  obtained 
before  the  declaration  of  homestead  was  filed  for  record.  (2) 
On  debts  secured  by  mechanics',  contractors',  sub-contractors', 
architects',  builders',  laborers',  material  men's,  or  vendors'  liens 
upon  the  premises.  (3)  Upon  debts  secured  by  mortgages  on  the 
premises  executed  and  recorded  before  the  homestead  was  filed 
for  record.  (4)  And  on  debts  secured  by  mortgage  on  the  prem- 
ises executed  and  acknowledged  by  both  husband  and  wife  or  by 
the  claimant  if  unmarried. — (C.  C.  1241.) 

210  Q. — Can  it  be  incumbered? 

A. — It  can   by  both  husband  and  wife  consenting. — (C.   C.   1242.) 

211  Q. — How  would  you  go  about  getting  a  homestead? 

A. — By  filing  a  declaration  of  homestead,  properly  signed  and  acknowl- 
edged witii  the  County  Eecorder;  containing  (1)  a  statement 
showing  that  the  person  making  it  is  the  head  of  a  family  and  if 
married,  the  name  of  his  spouse;  (2)  a  statement  that  the  person 
making  it  is  residing  on  the  premises  and  claims  the  same  as  a 
homestead;  (3)  a  description  of  the  premises,  and  (4)  an  estimate 
of  its  cash  value. — (C.   C.   1263.) 

212  Q. — Can   the   husband   dispose   of   the   homestead   without   the   consent 

of  the  wife  if  it  is  taken  from  his  separate  property? 
A.— He  cannot.— (C.  C.  1242.) 

213  Q. — From  what  property  can  a  homestead  be  taken? 

24 


A. — It  can  be  taken  from  the  euiiiiniiiiity  property,  or  separate  property 

of  husband,  or  by  the  consent  of  the  wife  it  may  be  taken  from 

her  separate  estate. — (C.  C.  1238.) 

211     Q. — Who  may  make  a  declaration  of  homestead? 

A. — Anv  ]){'rHon  who  owns  property  and  actually  resides  thereon. — 
(C.  C.   1260.) 

215  Q. — Who  is  considered  the  head  of  a  family? 

(1)  Husband  if  the  claimant  is  a  married  person.  (2)  Every  person 
who  has  residing  on  the  premises  with  him  or  her  and  under 
his  or  her  care  and  maintenance  any  minor  child,  grandchild, 
brother,  sister,  or  minor  child  of  a  deceased  brother  or  sister, 
father,  grandfather,  mother  or  grandmother,  the  father,  mother, 
grandfather  or  grandmother  of  a  deceased  husband  or  wife,  or  an 
unmarried  sister  or  other  relative  who  has  attained  the  age  of 
majority  and  are  unable  to  take  care  of  or  support  themselves. — 
C.  C.  1261.) 

216  Q. — Is  there  any  limit  placed  on  the  value  of  a  homestead? 

A. — Yes;  $5,000  if  claimant  is  head  of  the  family,  and  $1,000  if  claimant 
is  any  other  person. — (C.  C.  1260. 

217  Q. — Is   there  any   remedy  for  creditors  if   the   homestead   exceeds   tlie 

statutory  value? 
A. — There  is  bj'  the  application  of  a  creditor  to  the  Superior  Court 
of  the  county  in  which  the  property  is  located  for  the  appoint- 
ment of  persons  to  appraise  the  value  thereof,  bj"  filing  a  verified 
petition  showing:  (1)  The  fact  that  an  execution  has  been  levied 
upon  the  homestead.  (2)  The  name  of  the  claimant,  and  (3) 
That  the  value  of  the  homestead  exceeds  the  amount  of  the 
homestead  exemption. — C.  C.   1245-6.) 

218  Q. — For  how  long  after  the  sale  of  a  homestead  are  the  proceeds  exempt 

from  execution? 

A.— Six  months.— (C.   C.   1257.) 

219  Q.— What  kind  of  wills  are  there? 

A. — Nuncupative,  olographic  and  other  written  or  executed  wills. — 
(C.  C.   1276-77-88.) 

220  Q. — How  may  a  nuncupative  will  be  made? 

A. — The  decedent  must,  at  the  time,  have  been  in  actual  military 
service  in  the  field,  or  doing  duty  on  shipboard  at  sea,  .md  in 
either  case  in  actual  contemplation,  fear,  or  peril  of  death,  or 
the   decedent   must   have   been,   at   the   time,   in   expectation   of 

immediat-?  death  from  an  injury  received  the  same  day. — (C.  C. 

1289.) 

221  Q. — How  soon  after  a  nun-cupative  will  is  made  iiinst    it  be  reduced  to 

writing? 

A.— Within  30  days.— (C.  C.  1290.) 

222  Q. — How  many  witnesses  are  necessary? 
A.— It   requires   two.— (C.   C.   1289.) 

25 


223 

Q. 

A. 

224 

Q. 

A. 

225 

Q- 

A. 

226 

Q- 

A. 

-How   soon   must   it   be   filed    for   probate? 

-Not  earlier  than  14  days  after  the  death  of  the  devisor,  nor  later 

than  6  months  afterward.— (C.  C.  1290-1.) 
-IIow  much  can  be  decreed  by  it? 
-$1,000.— (C.   C.   1289.) 

-Are  any  witnesses  necessary  to  an  olographic  will? 
-There  need  not  be  any  witnesses. — (C.  C.  1277.) 
-What  effect  does  the  marriage  of  a  person  have  on  a  prior  will? 
-Will  revoked  in  case  of  a  woman;   also  in  case  of  a  man,  where 

issue  born,  provided  wife  or  issue  of  marriage  survive  him  and 

the  will  does  not  provide  for  said  survivor,  or  show   intention 

not  to  so   provide.— (C.   C.   1298-9-1300.) 
-What  will  a  posthumous  child  take  if  no  provision  is  made  for  it 

in  a  will? 
-The  same  portion  of  the  testator's  real  and  personal  property  that 

he  would  have  succeeded  to  if  the  testator  had  died  intestate. — • 

(C.   C.   1306.) 
-Suppose   a  will  is   made  which   does  not   revoke  former   ones,   are 

the   former  wills   good? 
-They  are,  except  those  parts  which  are  inconsistent  with  or  conflict 

with  the  latter  will.— (C.  C,  1296.) 
-Between  two  inconsistent  clauses  in  a  will,  which  is  preferred? 
-The  latter.— (C.  C.  1321.) 

-Between  two  inconsistent  clauses  of  a  deed,  whi<',h  is  preferred? 
-The  former.— (C.  C.   1070.) 
-Could  an  alien  inherit  at  common  law? 
-He  could  not. — (Blackstone.) 
-Can  an  alien  inherit  in  this  State? 
-He   can,   provided   he   takes   possession   within   five   years. — (C.   C. 

672.) 

233  Q. — What  amendment  to  the  constitution  gives  all  persons  equal  protec- 

tion of  the  law? 
A. — The  Fourteenth   Amendment. — (U.  S.  Cons.) 

234  Q. — How  is  the  title  to  real  property  acquired? 

A. — By  purchase  or  the  acts  of  the  parties  and  by  descent  or  the  opera- 
tion of  law. — (Blackstone.) 

235  Q. — Acts  of  the  parties  include  what? 

A. — Every   mode    of    acquiring   property    except   by    descent. —  (Black- 
stone.) 

236  Q. — For  what  length  of  time  is  the  Governor  of  the  State  of  California 

elected? 
A. — Four  years. — (Cal.   Cons.) 

237  Q. — How  long  must  one  be  a  citizen  of  the  United  States  and  a  resident 

of  the  State  before  he  is  eligible  for  the  office  of  Governor? 
A. — Five  years. — (Cal.  Cons.) 

26 


227 

Q- 

A 

228 

Q 

A 

229 

Q- 

A 

230 

Q- 

A 

231 

Q- 

A 

232 

Q- 

A 

238 

Q- 

A. 

239 

Q. 

A. 

240 

Q. 

A. 

241 

Q. 

A. 

242 

Q- 

A. 

243 

Q. 

A. 

244 

Q. 

A. 

-At   what   age? 

-Twenty-five  years. — (Cal.  Cons.) 

-What  are  the  official  terms  of  a  United  States  Senator? 

-Six  years. — (U.   S.   Cons.) 

-What   is   the   representation   of  each   State   in   the   United   States 

Senate! 
-Two  members. — (U.  S.  Cons.) 

-Do  the  people  ever  vote  for  the  President  or  Vice  President  direct? 
-They  do  not.— (U.  S.  Cons.) 
-What  are  the  courts  of  record  in  this  State? 
-The  Court  of  Impeachment,  the  Supreme,  District  Court  of  Appeal 

and  Superior  Courts. — (C.   C.   P.  33-4.) 
-How  is  a  vacancy  on  the  bench  filled? 
-By   appointment   by   tlie   Governor. — (Cal,   Cons.) 
-How  long  does  the  appointment  last? 
-Until  his  successor  is  duly  elected  at  the  next  general  election. — 

(Cal.  Cons.) 

245  Q. — What  is  the  length  of  a  term  of  ofiice  of  a  justice  of  the  Supreme 

Court  in  this  State? 
A. — Twelve  years. — (Cal.  Cons.) 

246  Q. — What  is  the  length  of  the  term  of  a  Superior  Court  judge? 
A. — Six  years. — (Cal.  Cons.) 

247  Q. — Has    the   Superior   Court   any   original   jurisdiction    which    is    con- 

current? 
A. — Yes.  (1)  With  Justice's  courts  in  actions  of  forcible  entry  and 
detainer,  where  the  rental  value  of  the  property  entered  upon 
or  unlawfully  detained  does  not  exceed  $25.00  per  month,  and 
the  whole  amount  of  damages  claimed  does  not  exceed  $200.00. 
(2)  In  actions  to  enforce  and  foreclose  liens  on  personal  prop- 
erty, where  neither  the  amount  of  the  liens  nor  the  value  of  the 
property  amounts  to  $30U.OO.  And  with  the  Supreme  Court  and 
District  Court  of  Appeal  in  writs  of  mandamus  ceriorari,  pro- 
hibition  and   habeas   corpus. — (C.    C.    P.    51-76-113.) 

-Has  the  Justice  Court  jurisdiction  in  cases  in  equity? 

-It  has  not,  except  in  foreclosure  of  chattel  mortgages. — (C.  C.  P. 
112.) 

-What  sum  limits  the  civil  jurisdiction  of  the  Justices  Court? 

-$299.99.— (C.   C.   P.   112.) 

-What  is  the  term  of  office  of  a  Justice  of  the  Peace! 

-Four  years.— (C.  C.  P.   110.) 

-Give  some  of  the  canons  of  descent  at  common  law. 

-(1)  Inlieritance  shall  lineally  descend  to  the  issue  of  the  person 
last  actually  seized,  in  infinitum,  but  shall  never  lineally  ascend. 
(2)  The  male  issue  shall  be  admitted  before  the  female.  (3) 
When  two  or  more  males  are  in  equal  degree,  the  eldest  only  shall 

27 


248 

Q. 

A. 

249 

Q- 

A. 

250 

Q- 

A. 

251 

Q- 

A. 

inherit,  but  the  females  all  together.  (4)  The  lineal  descendants, 
in  infinitum,  shall  represent  their  deceased  ancestor — that  is, 
shall  stand  in  the  same  place  as  he  himself  would  had  he  lived. 
(5)  On  failure  of  lineal  descendants,  the  inheritance  shall  descend 
to  the  collateral  relations  of  the  blood  of  the  first  purchaser, 
subject  to  the  three  preceding  rules,  to  evidence  which  blood 
there  are  two  rules,  viz.:  The  collateral  heir  of  the  person  last 
seized  must  be  his  next  collateral  kinsman  of  the  whole  blood,  and 
in  collateral  inheritances  the  male  ancestral  stock  shall  be  pre- 
ferred to  the  female,  unless  the  lands  have  descended  from  a 
female. — (Blackstone.) 

252  Q. — To  whom  may  a  writ  of  prohibition  be  directed? 

A. — To  any  inferior  tribunal,  corporation,  board  or  person. — (C.  C.  P. 
1103.) 

253  Q. — What  courts  can  issue  it, 

A. — Any  court  of  record,  except  Court  of  Impeachment. — (C.  C.  P. 
1103-34-37.) 

254  Q. — What  is  eminent  domain? 

A. — It  is  the  right  of  the  people  or  government  to  take  private  property 
for  public  use. — (Black.) 

255  Q. — When  may  it  be  exercised? 

A. — It  may  be  exercised  in  behalf  of  the  following  uses:  For  fortifica- 
tions, navy  and  army  stations,  etc.,  and  all  other  public  uses 
authorized  by  the  Government  of  the  United  States;  for  public 
buildings  and  grounds  for  the  use  of  the  State,  and  all  other 
public  uses  authorized  by  the  legislature  of  the  State;  for  public 
buildings  and  grounds  for  the  use  of  any  county,  incorporated 
city,  town,  village  or  school  district;  or  canals,  aqueducts,  reser- 
voirs, etc.,  for  the  conducting  or  storing  water  for  the  use  of  the 
inhabitants  of  any  county,  city,  village  or  town;  for  wharves, 
docks,  piers,  chutes,  roads,  bridges,  etc.;  for  use  of  any  commod- 
ity or  conveyance  used  in  public  transportation,  etc.;  for  by- 
roads leading  from  highways  to  residences,  farms,  factories  or 
any  property  used  for  public  purposes;  for  telegraph  and  tele- 
phone lines;  for  sewerage  of  any  city,  town  or  community  of  ten 
families  or  more;  for  oil  pipe  lines,  roads  and  flumes  for  logging 
and  lumbering  purposes;  for  canals,  reservoirs,  etc.,  for  supply- 
ing and  storing  water  for  generating  and  transmitting  electricity, 
heat,  light  and  power  lines;  for  cemeteries  for  the  burial  of  the 
dead,  and  enlarging  and  adding  to  the  same  and  grounds  thereof; 
and  for  the  plants  of  any  individual  firm  or  corporation  engaged 
in  searching  the  public  records,  including  all  copies  thereof,  all 
abstracts  or  memoranda  taken  from  the  public  records.  Pro- 
viding the  public  records  have  been  lost  or  destroyed  by  con- 
flagration or  other  public  calamity. — (C.  C.  P.  1238.) 

28 


256 

Q- 

A. 

2r)7 

Q- 

A. 

258 

Q. 

A. 

259 

Q-- 

A. 

-What   is  an   adrninistratorf 

-It  is  a  person  appointed  by  law  to  administer  upon  the  property 
of  a  person  dying  intestate. — (C.  C.  P.  1365.) 

-What  is  the  difference  between  an  Executor  and  an  Administratort 

-Tiie  former  is  named  by  the  person  in  his  will,  and  the  latter  is 
appointed  by  the  court. — (C,  C.  P.   1301-65.) 

-What  is  a  sole  tradcrl 

-It  is  a  married  woman,  permitted  by  a  .Judgment  of  the  Superior 
Court  to  carry  on  the  particular  business  named  in  her  petition, 
— (C.  C.  P.  1811.) 

-How  may  a  wife  become  a  sole  trader! 

-By  giving  a  public  notice  of  intention  for  four  successive  weeks 

in  a  newspaper  and  ten  days  prior  to  day  set  in  notice,  file  with 

the  Superior  Court  a  verified  petition  setting  forth  (1)  that  the 

application   is  made   in  good  faith   to   enable  the   applicant   to 

support   herself,    and   others   dependent   upon    her,    giving   their 

names   and   relation;    (2)    the  fact   of   insufficient   support   from 

her  husband  and  causes  thereof,  if  known;  (3)  any  other  grounds 

for  application  which  are  good  causes  for  a  divorce,  with  the 

reason  why  a  divorce  is  not  sought,  and  (4)  the  nature  of  the 

business  proposed  to  be  conducted,  the  capital   to  be  invested 

therein    if    any,    and    the    sources    from   which    it    is    derived. — 
(C.  C,  P,  1813,) 

260  Q. — How   much   of    the   community   property   or   separate    property    of 

husband  may  a  sole  trader  have? 
A, — Not  exceeding  five  hundred  dollars, — (C,  C.  P.  1814.) 

261  Q. — Who  can  object  to  a  woman  becoming  a  sole  trader? 
A. — Any   creditor   of   the   husband. — (C.    C.   P.    1815.) 

262  Q, — What   are  the  grounds  of  opposition? 

A. — (1)    By   a  specific   denial   of   the   truth   of   any   allegation   of    the 

petition;   (2)   setting  forth  that  the  application  is  made  for  the 

purpose  of  defrauding  the  opponent;  or  (3)  that  the  application 

is  made  to  prevent,  or  will  prevent,  him  from  collecting  his  debt, 
— (C,  C,  P,  1815.) 

-What  are  the  liabilities  of  a  sole  trader? 

-She  is  not  liable  for  any  of  the  debts  of  her  husband,  but  is 
liable  for  all  her  debts  and  is  entitled  to  sue  and  be  sued  with- 
out being  joined  with   her  husband.— (C.   C.  P.   1819-20.) 

-What   is   accord   and   satisfaction? 

-Accord  is  an  agreement  to  accept  in  extinction  of  an  obligation, 
something   different   from   or   less    than    that   which    the    person 
agreeing  to  accept  is  entitled;   satisfaction  is  acceptance  by  a 
creditor,  of  the  consideration  of  an  accord. — (C.  C.  1521-23.) 
265     Q. — What   is  a   novation? 

A. — It  is  the  substitution  of  a  new  obligation  for  an  existing  one. — 
(C.   C,   1530.) 

29 


263 

Q 

A 

264 

Q 

A 

266     Q. — What  is  an  agent? 

A. — An  agent  is  one  who  represents  another,   called  the  principal,   in 

dealings  with  third  persons. — (C.  C.  2295.) 
:267     Q. — Can  an  agent  delegate  his  authority? 

A. — He    can    unless    specifically    forbidden,    in    the    following    cases: 

(1)   When   the  act  to   be   done  is  purely   mechanical;    (2)    when 

it  is  such  as  the  agent  cannot   hiinscU'  and  the  sub   agent  can 

lawfully   perform;    (3)    when   it    is   the   usage    of    the    place   to 
••  delegate  such  powers;  or  (4)   when  such  delegation  is  specially 

authorized  by  the  principal. — (C.  C.  2349.) 
-What  things  may   an  agent  do? 
-lie  may  be  authorized  to  do  any  acts  which  his  principal  might 

do,   except   those   things   to   which   the   latter   is   bound   to   give 

personal   attention. —  (C.  C.   2304.) 
-If  an  agent   exceeds  his  authority  who   is   responsible? 
-The  principal  is  bound  by  his  authorized  acts  so  far  only  as  they 

can  be  plainly  separated  from   those   which  were  unauthorized. 

— (C.  C.  2333.) 
-What  is   an  estate  in  fee-tail? 
-It   was   a   conditional   fee   shorn   of   the   right   of   alienation   after 

condition  performed,  and  vesting   in   the   donor   an   indefeasible 

reversion. — (Blackstone.) 
-Have  we  estates  in  fee-tail  in  California? 
-We  have  not.— (C.  C.  763.) 

-What  is  an  estate  in  tail  after  possibility  of  issue  extinct? 
-It  occurs  where  one  is  a  tenant  in  special  tail  and  a  person  from 

whose  body  the  issue  was  to  spring  dies  without  issue,  or  having 

left    issue,    that    issue   becomes    extinct. —  (Blackstone.) 
-Who  was  the  casual  ejector? 
-The  second  friend  of  the  adverse  claimant  who  collusively  ejected 

the  first  friend  and  who  became   the  defendant   in  an  action  in 

ejectment. — (Blackstone.) 
-What  is  remainder? 
-It  is  an  estate  limited  to  take  effect  and  bo  enjoyed  after  another 

estate   is   determined,   and    created   at   same   time    and   by   same 

conveyance. — (Tiedeman.) 
-What  is  reversion? 

-Reversion  is  the  residue  of  an  estate  left  in  the  grantor  to  com- 
mence in  possession,  after  the  determination   of  some  particular 

estate  granted  out  by  him. — (Blackstone.) 
-Could  remainders  commence  in  the  future? 
-They  could  not. — (Blackstone.) 
-What  fiction  was  invented  to  free  fee-tails? 
-Fines  and  common  recoveries. — (Blackstone.) 
-What   were   common   recoveries? 

30 


268 

Q- 

A. 

269 

Q." 

A. 

270 

Q-- 

A. 

271 

Q. 

A. 

272 

Q. 

A. 

273 

Q- 

A. 

274 

Q- 

A. 

275 

Q. 

A. 

276 

Q- 

A. 

277 

Q- 

A. 

278 

Q- 

A. — They  were  suits  for  the  recovery  of  land  and  were  invtnUd  \>\ 
the  ecclesiastics  to  elude  the  statute  of  inort-main,  but  were 
afterwards  encouraged  by  the  judges,  for  by  their  use  all 
limitations  upon  estates-tail  were  removed,  and  an  absolute  and 
pure   fee   simple  passes   as   a   legal   efTect. — (Sprague.) 

279  Q. — Give  kinds  of  corporations  at  common   law. 

A. — Aggregate    and    Sole;    Ecclesiastical    and    Lay. — (Blackstone.) 

280  Q. — How  is  a  deed  executed  by  a  corporation? 

A. — Ordinarily  by  signing  the  name  of  the  corporation  by  the  Presi- 
dent and  Secretary,  with  the  corporate  seal  a&ixod,  although  the 
Board  of  Directors  have  the  power  to  authorize  any  other  mem- 
bers to  execute  same. — (C.  C.   1161.) 

281  Q. — Were  divorces  granted  at  common  law? 
A. — They  were. — (Blackstone.) 

282  Q. — For  what  causes? 

A. — Causes  generally  recognized  were  adultery,  impotency,  cruelty, 
fraud  in  obtaining  marriage   and   desertion. — (Blackstone.) 

283  Q.— What   is   the   rule   in   Shelly 's   case? 

A. — It  declares  that  when  the  ancestor,  by  any  gift  or  conveyance, 
taketh  an  estate  of  freehold,  and  in  the  same  gift  or  convey- 
ance an  estate  is  limited,  either  mediately  or  immediately,  to 
his  heirs,  in  fee  or  in  tail,  "his  heirs,"  are  w^ords  of  limitation 
of   the    estate,    and    not    words   of   purchase. — (Blackstone.) 

-Of  what  matters  had  ecclesiastical  courts  jurisdiction? 

-Their  jurisdiction   extended  over  only   such   ecclesiastical  matters 

as  which  it  was  supposed  the  Court  of  Rome,  or  the  Pope,  had 
proper  or  rightful  reference. —  (Blackstone.) 

-What  is  meant  by  conveyance? 

-The  term  conveyance  embraces  every  instrument  in  writing  by 
which  any  estate  or  interest  in  real  property  is  created,  aliened, 
mortgaged  or  incumbered,  or  by  which  the  title  to  any  real 
property  may  be  effected,  except  wills. — (C.  C.  1215.) 

-What  is  recrimination? 

-It  is  a  showing  by  the  defendant  of  any  cause  of  divorce,  against 

the  plaintiff,  in  bar,  of  the  plaintiff's  cause  of  divorce. — (C.  C. 
HI.) 

-What   ceremony  was  necessarj'  to   marry  at  common   law? 

-No  formalities  were  necessary. — (Blackstone.) 

-Give   kinds   of   guardians   mentioned   in   Blackstone. 

-In  chivalry,  in  socage,  by  nature  and  for  nurture. — (Blackstone.) 

-What   will   destroy  an  estate   in  joint  tenancy? 

-It    will    be    dissolved    by    destroying    any    one    of    its    constituent 

unities.      Viz.:      Unity   of   time,    title,    interest    or   possession. — 

(Blackstone.) 

-Have  we  tenancy  in  common   in  California? 
-Yea.— (C.  C.  686.) 

31 


28-4 

Q 

A 

285 

Q 

A 

286 

Q- 

A 

287 

Q 

A 

288 

Q. 

A 

289 

Q 

A 

290 

Q 

A 

,1 


291  Q. — Have  we  joint  tenancy  in  California? 
A.— Yes.— (C.  C.  683.) 

292  Q. — How  may  joint   tenancy  be   created? 

A. — Only  when  created  by  a  single  will  or  transfer,  and  expressly 
declared  in  the  will  or  transfer  to  be  a  joint  tenancy. — (C.  C. 
683.) 

293  Q.— What  is  a  lease? 

A. — A  lease  is  an  agreement  for  the  possession  of  property  for  a 
specified  i^eriod  not  exceeding  fifty  years. — (C.  C.  717-8.) 

294  Q. — What  leases  must  be  in  writing? 

A. — Any  lease  the  terms  of  which  are  for  a  longer  period  than  one 
year.— (C.  C.  1624.) 

295  Q. — What  is  a  real   action? 

A. — It  is  an  action  for  the  recovery  of  real  property. — (Blackstone.) 

296  Q. — What  is   a   mixed  action? 

A. — It  is  an  action  for  the  recovery  of  real  property  and  also  for 
damages  for  any  wrong  sustained  in  respect  to  such  property. — 
(Perry.) 

297  Q. — What  is  a  personal  action? 

A. — It  embodies  all  actions  other  than  real  and  mixed. —  (Perry.) 

298  Q. — Into  what  two  classes  are  actions  divided  witli  reference  to  "form 

of  actions"? 

A. — Ex-delicto   and  ex-contractu. —  (Blackstone.) 

299  Q. — Can  a  lease  be  assigned? 
A. — It  can. 

300  Q. — At  common  law  in  whom  was  title  to  property  supposed  to  vest? 
A. — In  the  King. — (Blackstone.) 

301  Q. — Must  a  conveyance  of  real  estate  be  in  writing? 

A. — All  conveyances,  except  a  lease  not  to  exceed  one  year,  must 
be  in  writing.— (C.  C.   1091.) 

302  Q. — What  is  an  executory  contract? 

A. — It  is  one  where  some  future  act  is  to  be  done  by  one  or  more 
of  the  parties.— (C.  C.  1661.) 

303  Q. — Can  a  contract  be  made  by  a  minor  child? 

A. — Yes,  excepting  a  contract  relating  to  real  property  or  an  interest 
therein,  or  relating  to  any  personal  property  not  in  his  imme- 
diate jjossession  and  control. — (C.  C.  33-36.) 

304  Q. — What  is  a  good  consideration? 

A. — It  is  one  such  as  is  founded  on  natural  duty,  love  and  affection. 
—(Black.) 

30.5     Q. — What  is  a  valuable  consideration? 

A. — It  is  one  for  money  or  its  equivalent,  or  for  marriage. — (Black.) 
306     Q. — What  is  meant  by  an  estate  in  fee? 

A. — It  is  an  estate  which  one  has  where  lands  are  given  to  him  and 

to  his  heirs  absolutely  without   any  end   or  limit   to  his  estate. 
— (Blackstone.) 

32 


308 

Q. 

A 

309 

Q- 

A 

310 

Q. 

A 

311 

Q- 

A 

312 

Q- 

A 

307     Q. — What  is  an  estate  by  courtesy? 

A. — It  is  where  a  man  survives  a  wife  who  was  seized  with  an  estate 

in  fee-simple   or  fee-tail,   and   has  had  issue  by  her  born   alive, 

capable  of  inheriting  the  wife's   estate  as  heir  to  her;   on   the 

death  of  the  wife  he  will  hold  the  estate  during  his  life  as  tenant 

by  courtesy  of  England. — (Blaekstone.) 
-What  is  dower? 
-It  is  a  species  of  life  estate  which  a  woman  is,  by  law,  entitled 

to  claim  on  the  death  of  her  husbasd,  in  the  lands  and  tenements 

of  which  he   was  seized  in   fee   during  coverture. — Blaekstone.) 
-What  is  the  meaning  of  the  word  Seisin  at  common  law? 
-It   means   the   possession   by   the    tenant   of    a   freehold    estate. — 

(Blaekstone.) 
-What    was    Livery   of   Seisin? 

-It  was  the  delivery  of  possession   of  a  freehold  estate. — (Black.) 
-How   was   it    accomplished? 
-Either  by  going  upon  the  land  or  being  in  sight  of  it  and  by  an 

open    and    notorious    delivery,    gave    possession    thereof    in    the 

presence   of  other   vassals. — (Blaekstone.) 
-What  is  meant  by  i)ublishing  a  will? 
-It  is  the  declaring  of  the  will  by  the  testator  in  the  presence  of 

the  witnesses  to  be  his  last  will  and   testament. — (C.  C.   1276.) 

313  Q. — Can    a    witness    give    his    opinion    of    the    sanity    of    the    testator 

without  qualifying  as  an  expert? 
A.— He  can.— (C.  C.  P.  1870.) 

314  Q. — How  is   a   will   revoked? 

A. — It  can  be  revoked:  (1)  By  a  written  will  or  other  writing  of 
the  testator  declaring  such  revocation  and  executed  with  the 
same  formalities  with  which  a  will  should  be  executed  by  such 
testator;  or  (2)  by  being  burned,  torn,  canceled,  obliterated  or 
destroyed  with  the  intent  and  for  the  purpose  of  revoking  the 
same  by  the  testator  himself,  or  by  some  person  in  his  presence 
and  by  his  direction.— (C.  C.  1292.) 

315  Q. — If   a   man   dies   intestate   where   does   his   property   go? 

A. — It  passes  to  the  heirs  of  the  intestate  subject  to  the  control  of 
the  probate  court  and  to  the  possession  of  any  administrator 
appointed  by  the  court  for  the  purposes  of  administration. — 
(C.  C.  1384.) 

316  Q. — Give  some  of  the  rules  for  the  distribution  of  the  property  of  an 

intestate. 
A. — (1)  If  the  deceased  leaves  a  surviving  husband  or  wife  and  only 
one  child,  or  the  lawful  issue  of  one  child,  the  estate  will  be 
divided  in  equal  shares  to  the  surviving  husband  or  wife  and 
child  or  issue  of  child.  (2)  If  the  decedent  leaves  a  surviving 
husband   or  wife   and   more   than   one  child   living  or  one   child 

33 


living  aiul  the  lawful  issue  of  oue  or  more  deceased  children 
then  one-third  goes  to  the  surviving  husband  or  wife  and  the 
remainder  in  equal  shares  to  the  children  and  the  lawful  issue 
of  any  deceased  child  by  right  of  representation;  but  if  there 
is  no  child  of  decedent  living  at  his  death,  then  the  remainder 
will  go  to  all  of  his  lineal  descendants  and  they  shall  share 
according  to  the  right  of  representation.  (3)  If  the  decedent 
leaves  no  surviving  husband  or  wife  but  leaves  issue  the  whole 
estate  goes  to  such  issue  in  equal  shares.  (4)  If  the  decedent 
leaves  no  issue  nor  husband  nor  wife  the  estate  must  go  to  his 
father,  or  mother,  in  equal  shares,  and  if  either  is  dead  then 
to  the  other;  and  if  there  is  neither  issue,  husband,  wife,  father 
or  mother,  then  in  equal  shares  to  the  brothers  and  sisters  of 
decedent  by  right  of  representation.  (5)  If  the  decedent  leaves 
no  husband,  wife  or  kindred  and  there  are  no  heirs  to  take  his 
estate  or  any  portion  thereof  the  same  escheats  to  the  state  for 
the  support  of  the  common  schools. — (C.  C.   1386.) 

317  Q.— What  is  a  trust? 

A. — A  trust  is  an  obligation  arising  out  of  tlie  personal  confidence 
reposed  in,  and  voluntarily  accepted  by,  one  for  the  benefit  of 
another;  or  one  which  is  created  by  operation  of  law. — C.  C. 
2216-17.) 

318  Q. — What  are  the  names  of  the  parties  to  a  trust? 
A.— Trustor,  Trustee  and  Beneficiary.— (C.   C.  2218.) 

319  Q. — Can  you  apply  for  a  writ  of  habeas  corpus  to  the  Superior  Court 

of  another  county? 
A.— No.— (C.  C.  P.  76.) 

320  Q. — Can  the  Supreme  Court  grant  a  writ  of  habeas  corpus  in  exercise 

of   appellate   jurisdiction? 
A.— No.— (P.   C.   1474.) 

321  Q. — When  will  a  writ  of  review  be  issued? 

A. — Only  when  an  inferior  tribunal,  board  or  officer,  exercising  judicial 
functions,  has  exceeded  the  jurisdiction  of  such  tribunal,  board 
or  officer  and  there  is  no  appeal  nor,  in  the  judgment  of  the 
court,  any  plain,  speedy  and  adequate  remedy. — (C.  C.  P. 
1068.) 

322  Q. — If  the   Superior  Court  refuses  to   try   a  case   on   appeal   from   the 

Justices  Court  what  is  the   remedy? 
A.— By  writ  of  mandamus.— (C.   C.  P.   1085.) 

323  Q. — What   is   bailment? 

A. — It  is  a  delivery  of  goods  in  trust  upon  contract,  express  or  implied, 
that  the  trust  shall  be  faithfully  executed  on  the  part  of  the 
bailee  and  the  goods  restored  as  soon  as  the  purpose  of  the  bail- 
ment shall  be  accomplished. —  (C.  C.  1814.) 

324  Q. — What  degree  of  care  must  be  used? 

34 


A. — (1)  Gratuitous  depositary,  must  use,  at  least,  slight  care. — (C.  C. 
1846).  (2)  Depositary  for  hire,  must  use,  at  least  ordinary  care. 
— (C.  C.  1832.)  (3)  Borrower  for  use,  must  use  great  care. — 
(C.  C.   1886-96.) 

325  Q. — What  is  a  pledge  of  personal  property  f 

A. — It  is  a  deposit  of  personal  property  by  way  of  security  for  the 
performance  of  another  act. — (C.  C.  2986.) 

326  Q. — Who  has  possession  uuder  a  i)ledge? 

A. — The  pledgee  has  possession. — (C.  C.  2986.) 
1)27     Q. — What  is  a  demurrer  f 

A. — A  demurrer  is  an  excuse  for  not  pleading;  it  admits  the  truth  of 
the   facts   alleged,   but   denies   their   legal   sufficiency. — (Gould.) 

328  Q. — What   are  leading   questions? 

A. — They  are  questions  put  or  framed  in  such  a  form  as  to  suggrst 
the  answer  sought  to  be  obtained  by  the  person  interrogating. 
— (C.  C.  P.  2046.) 

329  Q. — What  are  hypothetical   questions! 

A. — They  are  a  combination  of  assumed  or  proved  facts  and  circum- 
stances stated  in  such  form  as  to  constitute  a  coherent  and 
specific  situation  or  state  of  facts  upon  which  the  opinion  of 
an  expert  is  asked  by  way  of  evidence  on  a  trial. —  (Black.) 

330  Q.— What  is  a  plea? 

A. — It  is  the  answer  which  the  defendant  in  an  action  at  law  makes 
to  the  plaintiff's  declaration,  in  which  he  sets  up  matters  of 
fact  as  defense. — (Blackstone.) 

331  Q. — Into   what   two   classes   are   picas   divided? 

A. — Into  dilatory  and  peremptory  pleas. — (Blackstone.) 

332  Q. — What  is  a  dilatory  plea? 

A. — It  is  a  defense  founded  on  some  matter  of  fact  not  connected  with 
the  merits  of  the  case  but  such  as  might  exist  without  impeach- 
ing the  right  of  action  itself. — (Blackstone.) 

333  Q. — What  is  a  peremptory  plea? 

A. — It  is  a  plea  which  goes  to  destroy  the  right  of  action  itself;  a  plea 
in  bar  to  the  action. — (Blackstone.) 

334  Q. — What  is  meant  by  the  term,  riparian  rights? 

A. — It  is  the  right  of  owners  of  land  on  the  banks  of  water  courses, 
relating  to  the  water,  its  use,  ownership  of  soil  under  the  stream, 
accretions,  etc.— (C.  C.  829.) 

335  Q. — Is  there  any  distinction  with  reference  to  the  right  upon  the  shore 

of  the  ocean  and  that  of  an  inland  lake? 
A. — When  the  land  borders  on  tide  waters,  the  owner  takes  to  the 
ordinary  high  water  mark;  where  the  land  borders  on  a  nav- 
igable lake  or  stream  where  there  is  no  tide,  the  owner  takes 
to  the  water's  edge  at  low  water  mark;  and  where  the  land 
borders  on  any  other  stream  or  lake,  the  owner  takes  to  the 
middle  of  such  stream  or  lake. — (C.  C.  830.) 

35 


336  Q. — To   whom    does   the    land    lying   between    the   line    at   high   water 

mark  and  the  line  of  low  water,  what  is  known  as  tide  lands, 
belong? 
A.— To  the  State.— (C.  C.  670.) 

337  Q. — What   is   an    alternative   writ? 

A. — It  is  a  writ  demanding  the  person  against  whom  it  is  issued  to 
do  a  special  thing,  or  show  cause  to  the  court  why  he  has  not 
done  so.— (C.  C.  P.  1087.) 

338  Q. — What  is   the   difference   between   an   alternative    and   peremptory 

writ? 
A. — A  peremptory  writ  must  be  similar  in  form  to  an  alternative  writ, 
except  that  the  words  ' '  requiring  the  party  to  show  cause  why 
he   should   not   be   absolutely,    etc.,"    must   be    omitted,    and   a 
return  day  inserted.— (C.  C.  P.  1104.) 

339  Q. — Can   a   writ   of  prohibition   be   either   alternative   or   peremptory? 
A.— It  can.— (C.  C.  P.  1104.) 

340  Q.— What  is  forcible  entry? 

A. — Every  person  is  guilty  of  a  forcible  entry  who  either:  (1)  By 
breaking  open  doors,  windows  or  other  parts  of  a  house,  or  by 
any  kind  of  violence  or  circumstance  of  terror  enters  upon 
or  into  any  real  property;  or  (2)  who,  after  entering  peaceable 
upon  real  property,  turns  out  by  force,  threats  or  menacing 
conduct,  the  party  in  possession. — (C.  C.  1159.) 

341  Q. — What  is  the  remedy  of  a  beneficiary  for  refusal  of  trustee  to  apply 

money  as  directed  by  the  trust? 
A.— Order  of  court.— (C.  C.  2237.) 

342  Q. — What  is  partition? 

A. — It  is  any  division  of  real  or  personal  property  between  co-owners 
or  co-proprietors. — (C.  C.  P.  764.) 

343  Q. — What  is  the  distinction  between  latent  and  patent  ambiguity? 

A. — In  the  former  the  language  employed  is  clear,  but  some  extrinsic 
fact  creates  the  necessity  for  an  interpretation  between  two  or 
more  possible  meanings;  and  in  the  latter  the  language  used 
appears  upon  the  face  of  the  instrument  to  be  defective,  obscure 
or  insensible. — (Blackstone.) 

-What  was  an  action  of  assumpsit  at  common  law? 

-It  was  an  action  brought  to  recover  damages  for  the  breach  of 
a  contract  not  under  seal. — (Blackstone.) 

-What  is  fraud? 

-Fraud  embraces  every  kind  of  artifice,  by  which  one  person  can 
obtain  an  undue  advantage  over  another. — (Robinson  Ele.  Law.) 

-What  is  the  liability  of  inland  carriers? 

-Unless  the  consignor  accompanies  the  freight  and  retains  exclusiv* 
control  thereof,  an  inland  common  carrier  of  property  is  liable 
for   loss    or   injury   thereof    from   any   cause    whatever,    except: 

36 


344 

Q 

A 

345 

Q 

A 

346 

Q 

A 

(1)  An  inherent  defect  in  the  property  itself,  (2)  The  act  of  a 
public  enemy,  (3)  The  act  of  the  law,  (4)  Any  irrcHtible  super- 
human cause.  The  common  carrier  even  in  the  excepted  cases 
and  in  case  of  delay  is  liable  by  his  want  of  ordinary  care. — 
(C.  C.  2194-6.) 

347  Q. — What  acta   does  the   civil   code   declare   constitute  fraud! 

A.— (1)  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by  one 
who  does  not  believe  it  to  be  true.  (2)  The  positive  assertion 
in  a  manner  not  warranted  by  the  information  of  the  person 
making  it,  of  that  which  is  not  true,  though  he  believes  it  to 
be  true.  (3)  The  suppression  of  that  which  is  true,  by  one 
having  knowledge  or  belief  of  the  facts.  (4)  A  promise  made 
without  any  intention  of  performing  it;  or  (5)  any  other  act 
fitted  to  deceive.— (C.  C.   1572.) 

348  Q. — What  is  a  test  of  materiality f 

A. — An  allegation  is  material  when  if  it  were  stricken  from  the  plead- 
ings, the  pleading  would  be  insufficient.  It  is  one  which  if 
denied  and  not  proved  would  prevent  the  plaintitf  from  recover- 
ing.— ( Pomeroy. ) 

-What  is  specific  performance? 

-It  is  the  performance  of  a  contract  in  the  specific  form  in  which 
it  was  made,  or  according  to  the  precise  terms  agreed  upon. — 
(Bouvier.) 

-Can  all  contracts  be  specifically   enforced? 

-They  cannot.— (C.  C.  3390.) 

-What   are   the  pleadings   in   equity? 

-(1)  Bill.  (2)  Answer,  plea,  demurrer  or  disclaimer.  (3)  Replica- 
tion.— (Danlap.) 

-What  is  an  injunction? 

-It  is  a  writ  or  order  requiring  a  person  to  do  or  refrain  from  a 
particular  act.— (C.  C.  P.  525.) 

-What  has  been  your  education  and  training  in  the  study  of  law? 

-(Give  answer  in  accordance  with  the  course  you  have  pursued.) 

-For  what  length  of  time  is  a  Senator  in  this  State  elected? 

-Four  years. — (Cal.  Cons.) 

-For  what  length  of  time  is  an  Assemblyman  elected? 

-Two   years. — (Cal.   Cons.) 

-When  a  vacancy  occurs  in  either  House,  how  is  it  filled? 

-By  special  election  called  by  the  Governor  or  other  person  exercis- 
ing the  functions  of  Governor. — (Cal.  Cons.) 

357  Q. — Can  one  who  has  taken  up  land  under  the  homestead  law  of  the 

United  States  sell  the  same  before  patent  is  issued? 
A. — He   cannot. 

358  Q. — What   is   a   trade-mark? 

A. — It  is  a  name  or  device  used  by  a  seller  in  connection  with  goods 
sold  by  him.  to  indicate  tliat  they  are  made  by  him,  or  that  he 

-f  ^'^'    ^'         i 


349 

Q- 

A.- 

350 

Q.- 

A.- 

351 

Q- 

A.- 

352 

Q- 

A. 

353 

Q-- 

A.- 

354 

Q- 

A.- 

355 

Q- 

A. 

356 

Q. 

A. 

300 

Q 

A 

361 

Q- 

A 

362 

Q 

A 

has   some   exclusive    right    to    sell    them,   aud    thus   to    eseure   to 

liim  the  profits  arising  from  the  peculiar  character  of  the  goods 

bearing   that   mark. — (Parsons.) 
359     Q. — Can   a  constable   convey  title   to   realty   issued  under  a  justice's 

judgment  ? 
-He  can,  in  same  manner  as  a  sheriff. — (P.  C.  4315.) 
-Which  is  the  broader  term,  "hereditament"  or  "tenement"? 
-Hereditament. — (Blackstone.) 
-What  incidents  attain  to  joint  tenancy  that  do  not  attend  tenancy 

in  common. 
-The  unities  of  title,  time  and  interest. — (Blackstone.) 
-W^hat  is  an  estate  at  sufferance? 
-It  is  the  interest  of  a  tenant,  who   has  come  rightfully   into   the 

possession  of  lands  by  permission  of  the  owner,  and  continues 

to  occupy  the  &ame   after  the  period  for  which   he   is   entitled. 

— (Blackstone.) 

363  Q. — What  guarantee  is  there  for  the  security  of  private  property  from 

confiscation. 
A. — The  Constitution  of  the  United  States.— (U.  S.   Cons.) 

364  Q. — How  is  the  value  of  property  taken  for  public  purposes  estimated. 
A. — By  the  Superior  Court  or  jury  in  condemnation  proceedings  in  an 

action  in  eminent  domain. — (C.  C.  P.  1248.) 

365  Q. — If  the  opposing  counsel  offered  to  prove  the  contents  of  a  deed  by 

the  testimony  of  witnesses  who  had  read  it,  what  would  you  dot 

-I  would  enter  an  objection. — (C.   C.  P.   1830.) 

-What  grounds  would  you  give  for  objecting? 

-That  the  deed  itself  is  the  best  evidence.— (C.  C.  P.  1829.) 

-Is  parol  evidence  ever  admissible  to  prove  contents  of  a  written 
instrument? 

-It  is.— (C.   C.  P.   1855.) 

-Can  a  jury  be  taken  out  of  a   courtroom  to   view   a  place  where 
crime  was  committed? 

-It  can.— (P.  C.  1119.) 

-When  can  secondary  evidence  be  used? 

-Only  in  the  absence  of  primary  evidence. —  (C.  C.  P.  1855,  1907-38.) 

-What  is  a  nuisance? 

-Anything  which  is  injurious  to  health,  or  is  indecent  or  offensive 
to  the  senses,  or  an  obstruction  to  the  free  use  of  property,  so  as 
to  interfere  with  the  comfortable  enjoyment  of  life  or  property, 
or  unlawfully  obstructs  the  free  passage  or  use,  in  the  customary 
manner,    of    any    navigable    lake,    river,    bay,    stream,    canal    or 
basin,    or    any    public    park,    square,    street    or    highway,    is    a 
nuisance.— (C.  C.  3479.) 
371     Q. — If    the    principal's    act    must    be    in    writing,    must    the    agent's 
authority  be  in  writing? 
A.— Yes.— (C.  C.  2309.) 

38 


A. 

366 

Q." 

A. 

367 

Q- 

A. 

368 

Q- 

A. 

369 

Q- 

A. 

370 

Q- 

A. 

-Does  a  bailee  have  a  lien  on  property! 
-He   does.— (C.   C.  3051.) 
-What  is  the  mtauiug  of  ss? 

-Scilicet    (you   may   know),   tliat    is   to   say,   to-wit.    namely. 
-Distinguish   between   general    issue   and   traverse. 
-A    general    issue   is    a    denial    by   short   formulae    of    all    material 
allegations  of  a  declaration.     A  traverse  is  a  denial  of  particular 
facts  previously  pleaded  by  an  adversary. —  (Gould.) 
-Is  a  contract  based  upon  an  illegal  consideration  a  valid  one! 
—It  is  not. — (Parsons.) 
-If  one   of  the   parties   to   a   contract   is   mentally   wealc,   or  if   the 

consideration  has  been  obtained  by  fraud,  is  there  any  relief? 
-Yes.— (C.  C.  1565.) 
-Can   oral   testimony  be   introduced   to   explain   the   meaning   of   an 

ambiguous  contract? 
-It  can.— (C.  C.  P.  18.50.) 

—Does  the  court  or  jury  interpret  the  words  of  a  contract! 
—The  court. — (Parsons.) 

— Cau  a  contract  be  contradicted  by  oral  testimony? 
-It  cannot.— (C.  C.  P.  1856.) 

—What  is  the  difference  between  a  void  and  a  voidable  contract? 
—The  former  cannot  be  enforced,  while  the  latter  may  be  made  a 

valid  contract   by   a   later  confirmation. —  (Parsons.) 
—If   one   of   the   parties   refuse   to    perform   his   part   of   a   contract, 

what  is  the  remedy? 
—An    action    for    damages    or    specific    performance. — (C.    C.    3281, 

3384.) 
—Have  you  read  the  books  prescribed  by  us? 
— (Answer  according  to  books  read.) 
—How   does  a   contract   differ  from  an   obligation? 
— A   contract   is   an   agreement   between   two   or   more   parties,   upon 

sufficient   consideration,    to    do    or    not    to    do    a    certain    thing; 

and  an  obligation  is  a  legal  duty  by  which  a  person  is  bound 

to   do   or  not   to   do   a   certain   thing;   and   arises   either  from  a 

contract   of   the   parties   or   by   operation   of   law. —  (C.   C.   1427, 

1549.) 

384  Q.— How  did  the  term  "Freehold"  originate? 

A. — It  was  the  name  given  to  an  estate  at  common  law  held  in  con- 
sideration of  homage  and  knight  service,  and  created  by  livery 
of  seisin.  It  was  called  freehold,  being  the  least  estate  which 
could  be  bestowed  upon  a  freeman. — (Blackstone.) 

385  Q. — What  are  the  essentials  of  a  grant? 

A.— (I)  It  must  be  in  writing.  (2)  It  takes  effect  only  upon  its 
delivery  by  the  grantor,  and  (3)  It  cannot  be  delivered  to  the 
grantee   conditionally,   but    must   be   absolute. — (Blackstone.) 

39 


372 

Q- 

A.- 

373 

Q- 

A.- 

37 1 

(^- 

A.- 

375 

Q- 

A.- 

376 

(vX- 

A. 

377 

Q 

A. 

37S 

Q. 

A. 

379 

Q- 

A. 

380 

Q- 

A. 

381 

Q- 

A. 

382 

Q. 

A 

383 

Q 

38G     Q. — Can   a   grant   be   oral? 
A.— It  cannot.— (C.  C.  1053.) 

387  Q. — Is  evidence  the  same  as  proof? 

A. — It  is  not.  Evidence  is  the  means  sanctioned  by  law,  of  ascertaining 
in  a  judicial  proceeding  the  truth  respecting  a  question  of  fact; 
and  proof  is  the  effect  of  evidence;  the  establishment  of  a  fact 
by  evidence.— (C.  C.  P.  1823-4.) 

388  Q. — To  what  degree  of  certainty  must  facts  be  established? 

A. — Moral  certainty  only  is  required,  or  that  degree  of  proof  which 
produces  conviction  in  an  unprejudiced  mind. — (C.  C.  P.  1826.) 

389  Q. — What  is  meant  by  judicial  knowledge? 

A. — It  is  the  act  by  which  a  court,  in  conducting  a  trial,  or  forming 
a  decision,  will,  of  its  own  motion,  and  without  the  production 
of  evidence,  recognize  the  existence  and  truth  of  certain  facts 
having  a  bearing  on  the  contraversy  at  bar. —  (C.  C.  P.  1827-75- 
2102.) 

390  Q. — What  are  some  of  the  things  which  courts  take  judicial  notice? 

A. — (1)  The  true  signification  of  all  English  words  and  of  all  legal 
expressions.  (2)  Whatever  is  established  by  law.  (3)  Public 
and  private  official  acts  of  the  legislative,  executive  and  judicial 
departments  of  the  State  and  the  United  States.  (4)  The  seala 
of  all  courts  of  this  State  and  the  United  States.  (5)  The 
accession  to  office  and  the  official  signatures  and  seals  of  office 
of  all  the  principal  officers  of  the  Government,  both  State  and 
National.  (6)  The  existence,  title,  national  flag,  and  seal  of 
every  State  or  sovereign  recognized  by  the  executive  power 
of  the  United  States.  (7)  The  seals  of  courts  of  admiralty  and 
maritime  jurisdiction  and  notaries  public.  (8)  The  laws  of 
nature,  the  measure  of  time  and  the  geographical  divisions  and 
political  history  of  the  world.— (C.  C.  P.   1875.) 

391  Q. — Have  you  attended  the  courts? 
A. — Answer   according  to   experience. 

392  Q. — How  are  degrees  of  consanguinity  computed  at  common  law? 

A. — They  are  computed  by  beginning  at  the  common  ancestor  and 
reckoning  downward,  and  in  whatever  degree  the  two  persons 
are  distant  from. the  common  ancestor  is  the  degree  of  relation- 
ship between  them. — (Blackstone.) 

393  Q. — Give  the  difference  between  a  guardian  by  nature  and  a  guardian 

for  nurture. 
A. — Guardian  by  nature  is  father,  on  death  of  father,  mother  (English 
Law),  extended  to  the  person  and  heir  apparent  only  and  ended 
with  minority.  Guardian  for  nurture,  first,  father,  then  mother 
extended  to  the  person  only  and  Included  other  children  not  heir 
apparent  and  terminated  at  the  age  of  fourteen  years.  In  this 
country  merged  with  higher  guardianship  by  nature,  and  extends 
to  all  children.— (2  Kent.) 

40 


394  Q. —  What  is  tlie  diflercuce  between  a  vested  and  contingent  estate! 

A. — A  future  interest  is  vested  when  there  is  a  person  in  being  who 
would  have  a  right,  defeasible  or  indefeasible,  to  the  immediate 
possession  of  the  property,  upon  the  ceasing  of  the  intermediate 
or  precedent  interest.  A  future  estate  is  contiugcnt  where  the 
person  in  whom  or  the  event  upon  which  it  is  limited  to  take 
effect  remains  uncertain. — (C.  C.  694-5.) 

395  Q. — Give  a  general  idea  of  the  feudal  system  under  the  common  law? 
A. — It  had  its  origin  from  the  military  policy  of  the  Northern  or  Celtic 

nations;  by  which  allotments  of  large  parcels  of  land  were  made 
by  the  conquering  chief  to  the  superior  officers  of  their  armies; 
and  by  them  dealt  out  again,  in  smaller  parcels,  to  the  inferior 
officers  and  most  deserving  soldiers  under  them,  as  a  stipend 
or  reward  for  their  services,  and  on  condition  that  the  donee 
would  continue  to  faithfully  serve  hi  in,  who  gave  it,  both  at 
home  and  in  wars. — (Blackstone.) 

-What  was  a  special  contract  at  common  law? 

-A  contract  under  seal. — (Blackstone.) 

-How  soon  must  an  action  be  brought  for  trespass  on  real  property? 

-Within  three  years.— (C.  C.  P.  338.) 

-For  the  recovery  of  real  property? 

-Within  five  years  after  the  plaintiff  was  seized  and  possessed  of 
the  property.— (C.  C.  P.  318.) 

-For  the  specific  recovery  of  personal  property? 

-Within  three  years.— (C.  C.  P.  338. 

-An  action  on  the  ground  of  fraud  or  mistake? 

-Within  three  years  after  the  discovery  of  the  facts  constituting 
the  fraud.— (C.  C.  P.  338.) 

401  Q. — How    soon    after    filing    complaint    must    ])laintiff    have    summons 

issued  ? 
A.— Within  one  year.— (C.  C.  P.  406.) 

402  Q. — What  is  testimony? 

A. — It   is   evidence   given   by   a  witness,   under   oath   or   affirmation. — 
(Bouvier.) 

403  Q. — What  is   the   difference  between  conclusive  and  prima  facie  evi- 

dence? 
A. — The  former  is  evidence  which  the  law  does  not  permit  to  be  con- 
tradicted, and  the  latter  is  evidence  which  suffices  for  the  proof 
of    a   particular   fact   until   contradicted   or   overcome   by   other 
evidence.— (C.  C.  P.  1829-37.) 

404  Q. — What   is   the   meaning  of  incompetent,   irrelevant   and   immaterial 

when  used  as  an  objection  to  certain  evidence? 
A. — Incompetent    means    improper;    irrelevant    means    not    supporting 
the   issue;    and   immaterial   means   not    important,    pertinent    or 
decisive. — (Bouvier.) 

41 


396 

Q. 

A. 

397 

Q-- 

A. 

398 

Q- 

A. 

399 

Q. 

A. 

400 

Q- 

A. 

40')     Q. — What  arc  prosumj)tions  of  law? 

A. — A    presumption   of   l;iw   is    a    deduction   which    the    law    expressly 
directs  to  be  made  from  particular  facts. — (C.  C.  P.  1959.) 
406     Q. — What  are  presumptions  of  fact? 

A. — They  are  inferences  as  to  the  existence  of  some  fact  drawn  from 
the  existence  of  some  other  fact. —  (Greenleaf.) 
4U7     Q. — What  are  the  purposes  of  pleading? 

A. — To  supply  a  record  identifying  the  parties  to  the  action,  the  sub- 
ject-matter of  it,  and  the  tribunal  before  which  it  is  brought; 
to  produce  distinct  issues  between  the  parties  and  to  serve 
in  exceptional  instances  as  evidence  in  the  cause,  as  well  as  in 

all  cases  to  indicate  what  proofs  will  be  offered  on  the  trial  of  it. 
—(Gould.) 

408  Q. — To    what  facts  should  the  matter  stated  in  pleadings  be  confined? 
A. — To  the  facts  material  to  the  issue  or  complaint. —  (Gould.) 

409  Q. — What  is  an  action   in  ejectment? 

A. — It  is  an  action  for  the  recovery  of  the  possession  of  land,  and  for 
damages    for    the    unlawful    detention    thereof. — (Perry.) 

410  Q. — How  was  an  action  of  ejectment  classified? 
A. — As  a  mixed  action  ex-delicto. — (Perry.) 

411  Q. — What   is   insurance? 

A. — Insurance  is  a  contract  whereby  one  undertakes  to  indemnify 
another  against  loss,  damage  or  liability,  arising  from  an  un- 
known or  contingent  event. — (C.   C.   2527.) 

412  Q. — How  was  an  action  commenced  at  common  law? 

A. — By  the  plaintiff  sueing  out  an  original  writ  suitable  to  his  par- 
ticular  case. — (Perry.) 

413  Q. — What  was  the  form  of  action  in  which  the  real   owner  received 

the  profits  and  rents? 
A. — An  action  for  mesne  profits;  in  form,  an  action  of  "trespass." — 
(Perry.) 

414  Q. — Is  there  more  than  one  way  to  serve  a  summons? 

A. — Yes.  By  an  officer,  by  an  individual  and  by  publication. — (C.  C.  P. 
411-12.) 

415  Q. — How  is  the  return  made  by  an  officer? 

A. — The  summons  must  be  returned  with  his  certificate  of  service, 
and  of  the  service  of  a  copy  of  the  complaint,  where  such  copy 
is  served,  to  the.  office  of  the  clerk  from  which  it  issued. — 
(C.   C.  P.  410.) 

416  Q. — How  is  the  return  of  a  summons  made  by  an  individual? 

A. — It  must  be  returned  to  the  office  of  the  clerk  from  which  it  issued, 
with  an  affidavit  of  such  person  of  its  service. — (C.  C.  P.  410.) 

417  Q. — Suppose    the   party    to    be    served   concealed   himself    in   order   to 

avoid  service.    How  would  you  acquire  jurisdiction  in  that  case? 
A. — By  publication  of  summons. — (C.  C.  P.  412.) 

42 


418  Q. — How    lonj^   must   a    aiunriious   bf   jmblishrd  .' 
A. — At  least  yixty  days. 

419  Q. — How  loii<j;  a  time  after  time  of  publication  expires  has  the  party 

against  wiiom  summonH  issued  have  to  answer  f 
A.— Thirty  days.— (5  Cal.  4G5-6.) 

420  Q. — What  pleadings  must  be  verified? 

A. — Every  pleading  must  be  verified  when  the  complaint  is  verified, 
or  when  the  State,  or  any  officer  of  the  State,  in  his  official 
capacity,  is  plaintiff,  unless  the  admission  of  the  tnith  of  the 
complaint  might  subject  the  party  to  a  criminal  prosecution, 
or  unless  an  officer  of  the  State,  in  his  official  capacity,  is 
defendant.— (C.  C.  P.  446.) 

421  Q. — Can  the  contents  of  a  receipt  be  contradicted  by  oral  evidence? 
A.— It  can.— (C.  0.  P.   1962.) 

422  Q. — What  is  perjury? 

A. — It  is  the  willful  giving,  under  oath,  in  a  judicial  proceeding,  of 
false  testimony  material  to  the  issue  or  point  of  inquiry. — 
(P.  C.   lis.) 

423  Q. — Does  trover  still  exist  in  California? 
A. — Not  under  same   name. 

424  Q. — What  maxim  of  construction  is  applicable  to  all  pleadings? 

A. — In  the  construction  of  a  pleading,  for  the  purpose  of  determining 
its  effect,  its  allegations  must  be  liberally  construed,  with  a 
view  to  substantial  justice  between  the  parties. — (C.  C.  P.  452.) 

425  Q. — How   does  a  demurrer  affect  the   facts  stated   in   a   pleading? 

A. — It  admits  the  facts  and  refers  the  law  arising  thereon  to  the 
court.— (C.   C.  P.  430.) 

426  Q. — Is    there    any    place    in    our    codes    where    the    maxims    of    equity 

are  made  a  part  of  it? 
A.—Yes;  Title  IV,  Part  IV,  Civil  Code. 

427  Q. — For  what  purpose  may  bills  of  discovery  be  used? 

A. — It  is  a  bill  in  equity,  filed  to  obtain  a  discovery  of  facts  resting 
in  the  knowledge  of  the  defendant,  or  of  deeds,  or  writings, 
or  other  things  in  his  custody  or  power. — (Barton.) 

428  Q. — Where  must  all  actions  relating  to  real  property  be  tried? 
A.— Superior  Court.— (C.  C.  P.  76.) 

429  Q — What    liabilities    for    debts    of    corporation    attach    to    its    stock- 

holders? 
A. — Each  stockholder  of  a  corporation  is  individually  and  personally 
liable  for  such  proportion  of  all  its  debts  ana  liaDilities  con- 
tracted or  incurred  during  the  time  he  was  a  stockholder  as  th« 
amount  of  the  stock  or  shares  owned  by  him  bears  to  the  whole 
subscribed  capital  stock  or  shares  of  tlie  corporation. — (C.  C. 
322.) 

43 


430  Q. — Ts  a  stockholder  liable  for  debts  transferred  with  the  stock! 
A.— Tranferee   is   not   liable.— (C.   C.   322.) 

431  Q. — How  are  shares  of  a  corporation  attached? 

A. — By  leaving  with  the  President,  or  other  head,  or  Secretary,  Cashier, 
or  other  managing  agent  thereof,  a  copy  of  the  writ,  and  a 
notice  stating  that  the  stock  or  interest  of  the  defendant  is 
attached  in  pursuance  of  such  writ. — (C.  C.  P.  542.) 

432  Q. — What  are  the  mutual  obligations  of  husband  and  wife? 

A. — They  are  the  obligations  of  mutual  respect,  fidelity  and  support. — 
(C.   C.   155.) 

433  Q. — Who  chooses  the  place  of  residence? 
A.— The   husband.— (C.   C.   103-156.) 

434  Q. — Is  community  property  liable  for  the  wife's  debts  after  marriage? 
A. — No;  unless  secured  by  pledge  or  mortgage  thereof  executed  by  the 

husband.— (C.  C.  167.) 

435  Q. — Who  is  entitled  to  the  care  and  custody  of  the  child? 

A. — The  father  is  entitled  to  the  custody,  services  and  earnings  of  the 
child,  but  the  court  may,  on  application,  where  husband  and 
wife  live  in  a  state  of  separation,  award  the  custody  of  such 
minor  child  to  either,  for  such  time  and  under  such  regulations 
as  the  case  may  require. — (C.  C.   197.) 

436  Q. — In  what  cases  are  parties  deprived  of  a  jury? 

A. — In  all  cases  in  which  trial  by  jury  was  denied  at  common  law, 
e.  g.,  equity  eases,  divorce  suit.  (72  Cal  338,  5  Cal.  192,  64 
Cal.  266.) 

437  Q. — W^hat  is  a  custom? 

A. — Custom  is  a  usage  or  practice  which,  by  long  and  continued  habit, 
has  become  compulsory  and  acquired  the  force  of  law. — (Black- 
stone.) 

438  Q. — Do  you  know  of  any  of  the  particular  customs? 

A. — Gavel   kind,  customs  of  London,   etc. — (Blackstone.) 

439  Q. — What   is   an   estate   in    lands? 

A. — It  is  the  interest  that  any   one   lias   therein. — (Bouvier.) 

440  Q. — What  is  the  highest  estate  that  you  know  of? 
A. — Fee-simple. — (Blackstone.) 

441  Q.— Why  is  it  called  a  fee? 

A. — Because  it  imparts  an  absolute  inheritance  clear  of  any  condition, 
limitation  or  restriction,  and  when  not  disposed  of  by  will 
descends  to   the  heirs  generally. — (Black.) 

442  Q. — Mention  the  different  kinds  of  bailment? 

A. — Depositum,  mandatum,  commodatum,  pignori-acceptum  and 
locatum. — (Blackstone.) 

443  Q. — In  which  of  these  was  there  consideration? 
A. — Locatum. 

444  Q. — What  is  a  leasehold  estate? 

44 


A. — It   is  au   estate   for  a  Hpcc-ified   term   uot   to   exieed    fifty  years. — 
(C.  C.  718.) 
445     Q. — To  what  extent   is  tlie  eommon  law  in  force  in  California? 

A. — Only  where  the  codes  and  statutes  are  silent. — (C.   C.   5.) 
440     Q. — What  is  an  indorserl 

A. — It    is   a   person   who   writes   his    name    on   the   back   of   a,   bill    of 
exchange,   promissory   note,  etc. — (C.   C.   3108.) 
447     Q. — Give  an  example  of  a  promissory  note? 

A. —  Los  Angeles,  California,  January   10,  1900. 

On  demand,  after  date,  for  value  received,  I  promise  to  pay 
to  John  Doe,  or  order,  at  Los  Angeles,  California,  the  sum  of 
five  dollars,  with  interest  at  the  rate  of  seven  per  cent  per 
annum  until  paid. 

(Signed.)  . 

44S     Q. — What   is   a   corporeal   hereditament? 

A. — They  are  such  that  affect  the  senses;  they  consist  wholly  of  per- 
manent aud  substantial  objects  and  come  under  the  general 
denomination  of  laud. — (Blackstone.) 

449  Q. — What    are    incorporeal   hereditaments? 

A. — They  are  rights  annexed  to  corjioreal  property,  whether  real  or 
personal;  they  are  creatures  of  the  mind,  and  exist  only  in 
contemplation. — (Blackstone.) 

450  Q. — How  many  are  given? 

A. — Ten — advowsons,  tithes,  commons,  ways,  offices,  dignities,  fran- 
chises,  corodies,   annuities   and   rents. — (Blackstone.) 

451  Q. — What  is  a  chattel   mortgage? 

A. — It  is  a  contract  in  writing  by  which  specific  personal  property  is 
hypothecated  for  the  performance  of  an  act  without  the  neces- 
sity of  a   change   of   jiossession. — (C.   C.   2920.) 

452  Q. — What  is  a  respondentia  bond? 

A. — It  is  a  contract  by  which  a  cargo  or  some  part  thereof  is  hypothe- 
cated as  a  security  for  a  loan,  the  repayment  of  which  is 
dependent   on   maritime   risks. —  (C.   C.   303G.) 

453  Q.— Who  was  Kent? 

A. — James  Kent  was  an  American  jurist,  born  in  Phillipi,  New  York, 
July  31,  17C3;  died  December  12,  1847. 

454  Q. — What   work   did   he   write? 

A. — He  was  the  author  of  "Commentaries  on  American  Law,"  in  four 
volumes,  in  1826  to  1830. 

455  Q.— Who   was   Puffcndorf? 

A. — Samuel   Pulfendorf   was   a   German   writer   on    law   of   nature   and 

nations;  born  in  1632;  died  at  Berlin,  1694. 
•156     Q. — Who  was  Grotius? 

A. — Hugo  Grotius  or  De  Groot  was  a  Dutch  statesman;  born  in  Holland 

in    15S3;    died    1645. 

45 


457 

Q 

A 

458 

Q 

A 

459 

Q. 

A 

460 

Q 

A 

461 

Q- 

A 

462 

Q. 

A 

463 

Q- 

A 

-AVbat  is  a  bill  of  exceptions? 

-It  is  a  formal  statement  in  writing  of  exceptions  taken  to  rulings 

of  the  court  during  the  trial  of  a  cause. — (C.  C.  P.  649.) 
-How  was  the  Constitution  of  the  United  States  adopted? 
-Ratification    by    the    conventions    of    a    majority    of    the    thirteen 

States.— (U.  S.  Cons.) 
-What  were  the  articles  of  confederation? 
-The  compact  or  constitution  adopted  by  the  Continental  Congress 

in  1777. 
-What  is  a  dying  declaration? 

-It  is  a  declaration  in  anticipation  of  impending  death. —  (Bouvier.) 
-How    is   a   treaty    entered   into? 
-By  the  President,  with  consent  of  tlie  Senate. — (U.  S.  Cons.) 

-What  is  new  matter? 

-It  is  that  matter,  under  the  rule  of  evidence,  which  the  defendant 
must  affirmatively  establish. — (Pom.  C.  Rem.) 

-What  is  the  object  of  new  matter? 

-New  matter  is  to  avoid  the  cause  of  action  set  forth  in  the 
complaint. — (Pom.  C.  Rem.) 
464  Q. — If  "A"  makes  a  contract  with  "B, "  whereby  he  agrees  to  sell  to 
"B"  Lot  10  in  a  certain  tract  of  land,  and  in  drawing  the  con- 
tract he  agrees  to  sell  Lot  9,  can  "A"  enforce  the  contract 
against  "B"  and  compel  him  to  pay  for  the  lot  mentioned  in 
contract? 

-He  cannot. 

-What  course  would  you  pursue  to  remedy  the  mistake? 

-By   a   proceeding  in   equity. — (Story.) 

-If  a  contract  had  been  destroyed  or  lost,  how  would  you  prove  it? 

-By  secondary  evidence  or  the  next  best  evidence. — (C.  C.  P. 
1855-55A.) 

-How  do  you  produce  evidence  of  hand  writing? 

-By  the  handwriting  of  the  person  himself,  by  proof  of  some  one 
familiar  with  the  handwriting,  or  by  expert  testimony  on  hand- 
writing.—(C.   C.   P.   1943-45.) 

-Can  one  introduce  his  books,  his  account  books  in   evidence? 

-He  can.— (C.  C.  P.  1947.) 

-What  is  necessary  to  show  in  order  to  do  that? 

-They  must  be  identified  as  the  true  books  of  original  entry,  or 
entries  repeated  in  the  usual  course  of  business. — (C.  C.  P. 
1946-7.) 

470  Q. — Can  a  party  to  an  action  be  a  witness  in  his  own  behalf? 
A.— Yes.— (C.  C.  P.  1879.) 

471  Q. — Can  a  husband  or  a  wife  testify  in  an  action  between  themselves? 
A.— They  can.— (C.  C.  P.  1881.) 

46 


A 

465 

Q- 

A 

466 

Q- 

A 

467 

Q. 

A 

468 

Q- 

A 

469 

Q- 

A 

4--2     Q. — Supposi;  you  siibj.ocua  a  wilins.s  in  ;i  <asc  and  he  does  not  a[)i)oar 
iu  court,  how  would  you  secure  his  {iresence  there! 
A.— By  bench  warrant.— (C.  (J.   1'.   1993.) 

473  Q. — Suppose   a   person  had  books  or  doeumcuts  v/hich   you   wanted   to 

have  introduced  iu  evidence,  what  would  you  do? 
A. — If  in  the  hands  ol'  opposite  party,  notice  to  produce;    if  in  hands 
of   any    other    person,   serve   subpoena    duces-tccum. — (C.    C.    P. 
1855,  1985.) 

474  Q. — Suppose  you  were  tiying  a  case  and  you  called  an  engineer,  how 

would  you  qualify  him  to  testify? 
A. — By  examining  him  as  to  his  knowledge  and  experience. — (C.  C.  P. 

1870.) 

475  Q — Arc  matters  of  opinion  and  belief  ever  competent? 
A.— Yes.— (C.   C.  P.    1S7U.) 

47(3     Q. — What  particular  expression  is  used  in  speaking  of  the  proceedings 
for   redress   at   common  law? 

A. — An  action  in  a  court  of  justice. 
^77     Q. — What  were  they  called  in  equity? 

A. — A  suit  in   equity. — (Story.) 

478  Q. — P>y  whom  were  suits  in  equity  tried? 
A.— By  the  Court  of  Chancery.— (Story.) 

479  Q. — By  whom  were  actions  at  law  tried? 
A. — Common  Law  Courts. 

480  Q, — What  is  the  general  rule  to  determine  who  shall  be  plaintiff  and 

who  defendant? 
A. — The  parties  filing  the  complaint  arc  the  plaintiffs  and  the  persons 
sued  are  the  defendants. — (Blackstone.) 

451  Q. — Give  code  definition  of  fixtures. 

A. A  thing  is  deemed  to  be  afiixed  to  land  when  it  is  attached  to  it 

by  roots  as  in  the  case  of  trees,  vines  or  shrubs;  or  imbedded  in 
it,  as  in  the  case  of  walls;  or  permanently  resting  upon  it,  as 
in  the  case  of  buildings;  or  permanently  attached  to  what  is 
thus  permanent,  as  by  means  of  cement,  plaster,  nails,  bolts  or 
screws. — (C.  C.  660.) 

452  Q. — What  is  a  negotiable  instrument? 

A. — A  negotiable  instrument  is  a  written  promise  or  request  for  pay- 
ment  of   a   certain   sum   of   money   to   order   or   bearer. — (C.   C. 
3087.) 
483     Q. — Give  different  classes  of  negotiable  instruments. 

A. — Bills  of  Exchange,  Promissory  Notes,  Bank  Notes,  Checks,  Bonds 
and   Certificates  of   Deposit.— (C.   C.   3095.) 

454  Q. — Can  you  name  any  facts  which  need  not  be  stated  in  pleadings? 
A.— Probative   facts   need   not  be   stated. — (C.   C.   P.   309.) 

455  Q. — Where  must  the  defects  attacked  by  demurrer  appear? 
A.— Upon  the  face  of  the  complaint. — (C.  C.  P.  430.) 

47 


486  Q. — If  they  fail  to  appear  upon  the  face,  how  can  you  take  advantage 

of  them'? 
A.— By  answer.— (C.   C.  P.  433.) 

487  Q. — When  does  the  defendant  interplead  the  general  issue? 

A. — In   case   where   the    defendant   means   to    deny    the   whole    or   the 
principal  part  of  the  allegations  of  the  declaration. — (Perry  241.) 

488  Q. — What  was  found  in  equity  that  was  absent  in  law  courts? 
A. — Specific   relief. — (Story.) 

489  Q. — Was   the  jurisdiction   of   Courts   of  Equity   concurrent   with   those 

of  law  courts? 
A. — They  were  not  at  common  law. — (Story.) 

490  Q. — Will  equity  relieve  against  a  mistake  of  fact? 
A.— Yes.— (Story.) 

491  Q. — Will  it  against  a  mistake  of  law? 
A.— No.— (Story.) 

492  Q. — What  does  equity  offer  by  way  of  remedy  in  case  of  mistake? 

A, — ^It  places  both  parties  in  the  same  status  as  before  the  mistake 
was  made. — (Story.) 

493  Q. — What  is  meant  by  equitable   conversion? 

A. — It  is  the  transformation,  by  a  doctrine  of  equity,  of  personal 
property  into  real  estate,  and  of  real  estate  into  personal  prop- 
erty.—(Story.) 

494  Q. — When  is  fraudulent  misrepresentation  actionable? 

A. — Whenever  the  injury  is  done  or  obligation  is  created. — (C.  C. 
1689,  3406.) 

495  Q. — When  is  a  transaction  presumed  to  be  made  under  undue  influence? 
A. — Every   presumption    will   be   indulged    in   against   transactions   by 

parties  holding  positions  of  trust  and  confidence. — (C.   C.   1575. 
Note  15,  97  Cal.  140.) 

496  Q. — Does  laches  bar  the  right  of  party  who  is  injured  by  fraud? 
A.— Yes.— (Story.) 

497  Q. — When  does  the  time  of  action  begin  to  run? 

A. — From  the  time  the  party  has  knowledge  that  the  fraud  has  been 
perpetrated.- (C.  C.  P.  338.) 

498  Q. — What  are  the  principal  actions  for  equitable  relief? 

A. — Injunction,  Interpleader,  Eeview,  Eecission,  Foreclosure  of  Mort- 
gages,   Equitable    Liens    and    Specific    Performance.— (Eaton.) 

499  q — Can   recission   be   compelled   for   mere   mistake   where   the   parties 

cannot   be   placed   in   statu   quo? 
A.— No.— (C.   C.   1689.) 

500  Q. — Can  an  instrument  be  canceled  in  part? 
A. — Only  in  certain  cases. — (C.  C.  3414.) 

501  Q. — What  is  an  injunction  called  which  demands  that  a  person  restore 

things   to   former  position? 
A. — Mandatory. — (Story.) 

48 


502     Q. — What  kinds  of  injunctions  are  there! 

A. — Mandatory,   prohibitory,   interlocutary   and   jjcrnianeut. —  (C.   C.   P. 
525,   1084,  1105.) 
5(j3     q — Can  you  bring  an  action  in  justice  court  amounting  to  $300? 

A.— No.— (C.  C.  P.   112.) 

504  Q. — How  soon  must  an  action  be  brought  fur  the  death  of  a  person  for 

the  wrongful  act  of  another? 
A—One  year.— (C.  C.  P.  340.) 

505  Q. — What  persons  are  under  such  disability  as  to  be  removed  from  this 

rule? 
A. — Insane,   minors,   or   imprisoned   persons. — (C.    C.   P.    352.) 
5y(j     Q_ — What  is  the  efifect  if  the  commencement  of  an  action  is  enjoined? 
A. — ^The   right   of   action    is   not   destroyed;    only    delayed. — (C.    C.    P. 
356.) 

507  Q. — What   is  the   general   rule  for   determining  the   place   of   trial  for 

all  actions. 
A. — The   residence   of   the   parties   and    the   kind    and    location   of   the 
property.— (C.  C.  P.  392-400.) 

508  Q. — How  many  summons  is  a  plaintiff  entitled  to? 

A. — As  many  as  he  may  demand  within  one  year  from  date  of  filing 
complaint.— (C.  C.  P.  846-7,  408,  903.) 

509  Q. — Suppose   some   of  the   parties  were  served   and   others   not  served, 

could  you  take  judgment  against  those  not  served? 
A.— No.— (C.  C.  P.  414,  989.) 

510  Q. — Is  there  any  requirement  of  verification   of  pleadings  on  part  of 

the  plaintiff? 
A. — As  a  general  rule,  complaint  does  not  need  to  be  verified.     Exam- 
ples   requiring   verification:      Action   of   forcible   entry    and   de- 
tainer (C.  C.  P.  1166)   and  proceedings  in  injunctions   (C.  C.  P. 
527). 

511  Q. — What  is  done  with  a  sham  or  irrelevant  answer? 

A. — It  is  stricken  out  upon  such  terms  as  the  court  may,  in  its  discre- 
tion, impose. — (C.  C.  P.  453.) 

512  Q. — Is  an  affidavit  ever  accepted  as  evidence  in  a  case? 

A. — Not  in  a  hearing  of  a  case  upon  the  issues. — (C.  C.  P.  2009-11.) 

513  Q. — Name   some  writs   mentioned   in   the   code   relating   to   real   estate. 
A. — Writ  of  possession  and  writ  of  assistance. — (C.  C.  P.  1210,  1254.) 

514  Q. — How  many  actions  can  be  had  for  the  foreclosure  of  a  mortgage? 
A.— One.— (C.  C.  P.  726.) 

515  Q. — What  liability,  if  any,   does  one  assume   for  unpaid   subscriptions 

to  stock  by  accepting  transfers  of  the  shares  I 

A. — He    assumes    all    the    liability    there    may    be    against    the  shares, 

which    amount    may    equal    the    value    of    the    shares    at  par. — 
(C.  C.  322.) 

49 


520 

Q. 

A 

521 

Q- 

A 

522 

Q 

A 

523 

Q 

.110     Q. — Is  it  an  offcnso  for  au  attorney  to  advertise  to  procure  a  divorce  in 
California? 

A.— Yes.— (P.  C.  159A.) 

517  Q. — Wliat  is  tlie  grade  of  the  offense? 
A, — It  is  a  misdemeanor. — (P.  0.  159A.) 

518  Q. — When  is  the  plea  res  adjudicata  a  bar  to  au  aelion? 

A. — When  shown  by  the  plea  that  the  action  has  been  previously 
decided. — (Bouvier.) 

519  Q. — When   is   the   plea   of   another   action   pending   between    the    same 

parties  on  the  same  subjects  a  good  plea  in  this  State? 

-It  is  a  good  plea  always. — (C.  C.  P.  430.) 

-What  three  things  are  necessary  to  constitute  a  valid  trust? 

-Words  or  acts  sufficient  to  create  proper  parties  (trustor,  trustee 
and  beneficiary),  definite  subject,  certain  and  ascertained  object. 
—(Eaton  on  Eq.     C.  C.  2221-2.) 

-How  many  kinds  of  nuisance  are  there? 

-Public  and  private.— (C.  C.  3480-81.) 

-Suppose  a  court  refused  to  go  on  with  a  case,  what  yould  you  do? 

-Apply  for  writ  of  mandate.— (C.  C.  P.   1085.) 

-Mention    any   special   proceedings. 
A. — (1)  Of  a  civil  nature:  writs  of  review,  mandate,  prohibition,  sum- 
mary  proceedings,    enforcement    of   liens,    eminent    domain    and 
proceedings    in    probate.      (2)    Of    a    criminal    nature:    writ    of 

habeas   corpus,   and   coroner's   inquest. — (Part   3   C.    C.    P.    1063 
to  1822.) 

524     Q. — What  is  the  difference  between  a  writ  of  injunction  aad  prohibi- 
tion? 

A. — A  writ  of  injunction  is  a  writ  issued  against  an  individual  com- 
manding him  to  not  do  a  certain  thing,  and  a  writ  of  prohibition 
is  one  directed  to  an  inferior  tribunal,  corporation,  board  or 
officer  commanding  him  not  to  do  a  certain  thing  which  is  with- 
out or  in  excess  of  his  official  jurisdiction. —  (C.   C.   525,   1102.) 

. — Is  it  necessary  to  answer  a  cross-complaint? 

.— Yes.— (C.  C.  P.  442.) 

. — How  soon  must  an  action  be  brought  to  recover  money  or  other 
property   deposited   with   any   bank   or   trust   company? 

.—There  is  no  limitation.— (C.  C.  P.  348.) 

. — How   is  an   action  commenced? 

.—By  filing  the  complaint.— (C.  C.  P.  405.) 

. — What  is  the  purpose  of  demurrer? 

. — It  is  to  raise  an  issue  of  law. — (Gould.) 

. — In  cases  of  foreclosure,  are  the  parties  entitled  to  jury? 
.—No. 

530     Q. — May   the   record   books   be   introduced    in   evidence   to   prove   your 

deed  when  the  original  is  lost? 

A.— Yc«.— (C.   C.   P.    1919-1950.) 

50 


525 

Q- 

A 

526 

Q- 

A 

527 

Q- 

A 

528 

Q. 

A 

529 

Q. 

A 

531 

Q- 

A.- 

532 

Q- 

A. 

533 

Q- 

A. 

-How  would  you  prove  you  lost  your  deed? 

-The  general  rule  is,  that  reasonable  search  be  made  in  good  faith 
to  discover  it,  in  place  where  last  known  to  have  been  and  by 
inquiry  of  persons  likely  to  have  it. — (Jones.) 

-What  is  the  difference  between  the  United  States  Constitution  and 
the  State  Constitution? 

-The  Constitution  of  the  United  States  is  a  delegation  of  power, 
while  the  State  Constitution  is  a  limitation  of  power. — (Black.) 

-What  steps  arc  necessary  for  the  enactment  of  a  statute? 

-(1)  It  must  have  the  enacting  clause.  (2)  It  must  be  read  three 
times  and  regularly  passed  by  a  majority  vote  in  both  Houses 
and  approved  by  the  Governor  or  become  operative  in  the  man- 
ner prescribed  by  law  when  the  Governor  does  not  sign. — (Cal. 
Cons.) 

-How  do  we  determine  the  validity  or  constitutionality  of  a  law? 

-It  is  tested  by  an  action  in  court,  in  which  such  question  may  be 
incidentally  involved. — (Cyc.) 

-Are  there  any  instances  in  which  the  Supreme  Court  does  not 
exercise  appellate  jurisdiction? 

-Yes;  in  the  exercise  of  its  original  jurisdiction,  and  in  cases 
appealed  from  Justice  to  Superior  Court. — (Cal.  Cons.  C.  C.  P. 
50,  52  and  963.) 

-Does  an  injunction  run  against  a  court. 

-It  does  not.— (C.  C.  P.  525-6.) 

-What  process  would  you  use  to  prevent  another  person  from 
bringing  an  injunction  against  you  if  you  had  the  right? 

-You  have  no  right  to  prevent  him. 

-What  is  written  evidence? 

-It  is  documentary  evidence. — (C.  C.  P.  1887.) 

-What  is  the  difference  between  the  knowledge  of  the  court  and  the 
knowledge  of  the  judge? 
A. — The  knowledge  of  the  court  are  those  things  which  the  court  must 
take  cognizance  of,  while  the  knowledge  of  the  judge  are  those 
things  which  he  has  knowledge  of  as  an  individual. — (Green- 
leaf.) 

540  Q. — How  is  the  knowledge  of  the  court  ascertained? 

A. — The  court  takes  judicial  notice  of  certain  facts  and  may  resort 
for  its  aid  to  appropriate  books  or  documents  of  reference. — 
(C.  C.  P.  1875.) 

541  Q. — Can  the  legislature,  whenever  they  feel  disposed,  change  the  con- 

stitution? 
A.— No. 

542  Q. — Do  you  think  the  Supreme  Court  can   have  any  right  to  try  any 

case  that  does  not  arise  in  the  Supreme  Court? 
A. — The  Supreme  Court  tries  only  matters  of  law. 

51 


534 

Q. 

A 

53.3 

Q 

A 

536 

Q 

A 

537 

Q 

A 

538 

Q 

A 

539 

Q 

543 

Q- 

A.- 

5-ki 

Q-- 

A.- 

545 

Q- 

A.- 

546 

Q-- 

A.- 

547 

Q- 

A.- 

548 

Q-- 

A.- 

549 

Q.- 

A.- 

550 

Q-- 

A.- 

551 

Q-- 

A.- 

552 

Q.- 

A.- 

553 

Q-- 

A. 

554 

Q- 

A. 

555 

Q- 

A. 

556 

Q- 

A. 

557 

Q- 

A. 

558 

Q. 

A. 

559 

Q- 

A 

560 

Q- 

A 

-How  many  Superior  Courts  are  there  in  this  State? 

-One  Superior  Court  for  each  county  in  the  State. — (C.  C.  P.  65.) 

-How   many  judges   are   there? 

-Ninety-four. 

-Can  any  of  these  courts  have  more  than  one  judge? 

-Yes.— (C.  C.  P.  66-7.) 

-What  is  the  object  of  a  summons? 

-It    is    the    notification    to    the    defendant    informing    him    of    the 

pendency  of  an  action  and  requiring  him  to  appear  and  answer 

the   eomphuut   within   a   specified   time. — (Bouvier.) 
-How  would  you  serve  a  subpoena  on  a  minor  under  14  years  of  age? 
-Either  by  serving  the  parent  or  guardian  in  the  same  manner  as 

in  other  cases.— (C.  C.  P.  1722.) 
-How  would  you  serve  a  subpoena  upon  a  city  or  county? 
-By  serving  the  Mayor,  President  of  Council,  or  Chairman  of  Board 

of  Supervisors.— (C.  C.  P.  411.) 
-Why  would  you  file  a  lis  pendens? 
-To  give  notice  to  the  world. — (C.  C.  P.  409.) 
-Suppose   defendant   did   not   appear,   then   what? 
-Enter  default.— (C.  C.  P.  585.) 
-Suppose  the  property  is  sold  and  does  not  bring  enough  to  satisfy 

the  judgment,  what  would  you   do? 
-Take  a  deficiency  judgment.— (C.  C.  P.  726.) 
-What  would  you  do  if  he  had  other  property? 
-Satisfy  the  deficiency  from  it.— (C.  C.  P.  726.) 
-How  would  you  define  jurisdiction. 
-It   is   the   right   a   court    has    to    hear   and    determine    a    cause. — 

(Bouvier.) 
-How  many  kinds  of  jurisdiction  are  there? 
-Origin,  appellate  and  concurrent. — (C.   C.   P.) 
-How  would  you  answer  an  action  in  the  Superior  Court? 
—By  service  of  a  copy  upon  the  adverse  party  and  filing  the  original 

answer  with  the  clerk  of  the  Superior  Court. — (C.  C.  P.  406-10, 

527.) 
—How  would  you  answer  an  action  to  annull  a  deed? 
—Same  manner  as  above. 

—How  would  you  answer  an  action  to  declare  a  trust? 
—Same  manner  as  above. 

-Have  the  Supreme  and  Superior  Courts  any  concurrent  jurisdiction! 
—Yes,  when  they  have   original  jurisdiction   in   the  same  matter. — 

(Blackstone.) 
—Of  what  does  the  law  of  nations  consist? 
—The    law    of   nature,    compacts,   leagues,    treaties    and    agreements 

between  the  several  nations. — (Blackstone.) 
—How  is  it  enforced? 
—It  cannot  be  enforced  except  by  resort  to  arms. 

52 


561  Q. — What  is  moant  by  best  ovidonce? 

A. — It  is  priinaiy  evidence  or  that  which  alTords  the  greatest  certainty 
of  fact  in  question.— (C.  C.  P.  1829.) 

562  Q. — What  obligation  is  imposed  upon  every  one  by  law? 

A. — Every  person  is  bound,  without  contract,  to  abstain  from  injuring 
the  person  or  projjcrty  of  another,  or  infringing  upon  any  of  his 
rights.— (C.  C.  P.  1708.) 

563  Q. — What  is  the  difference  between  direct  and  circumstantial  evidence? 
A. — Direct  evidence  proves  the  fact  in  dispute  directly,  while  circum- 
stantial   evidence    tends    to    establish    the    fact    in    dispute    by 
proving  another.— (C.  C.  P.  1831-2.) 

564  Q. — What  is  prima  facie  evidence? 

A. — It  is  that  evidence   wiiich   supplies  for  the  proof  of  a  particular 
fact    until    contradicted    and    overcome    by    other    evidence. — 
(C.  C.  P.   1833.) 
."6."     Q. — Give  an  instance  of  indispensable  evidence. 

A. — To  prove  perjury  or  treason  or  probate  a  last  will,  more  than  one 
witness  is   required. — (C.   C.  P.   1967.) 

566  Q. — Give  code  definition  of  land. 

A. — Land  is  the  solid  material  of  the  earth,  whatever  may  be  the 
ingredients  of  which  it  is  composed,  whether  soil,  rock  or  other 
substance. — (C.  C.  659.) 

567  Q. — How  would  you  probate  a  last  will. 

A. — By  petitioning  the  court  having  jurisdiction  to  have  the  will 
proved;  setting  forth  in  the  petition:  (1)  Jurisdictional  facts. 
(2)  Whether  or  not  person  named  as  executor  consents  to  act 
or  renounces  his  rights  to  letters  testamentary.  (3)  Names  and 
ages  of  heirs  or  devisees  of  decedent.  (4)  Probable  value  and 
character  of  the  property  of  the  estate.  (5)  Name  of  person  for 
whom  letters  testamentary  are  prayed.  Serve  notice  on  heirs 
and  executor,  if  named,  of  time  set  for  probate  and  furnish  court 
with  proof  of  service.— (C.  C.  P.  1300.) 

568  Q. — What  is  the  rule  in  regard  to  contributory  negligence? 

A. — If  the  evidence  shows  that  the  plaintiff  was  guilty  of  negligence 
contributory  to  the  injury,  there  can  be  no  recovery. — (C.  C. 
484,  1970.) 

569  Q. — IIow  far  can  an  agent  bind  principal. 

A. — So  far  as  his  authority  either  actual  or  ostensibly  permits. — (C.  C. 
2299-2300.) 

570  Q. — How  far  is  principal  responsible  for  torts  of  an  agent? 

A. — The  principal  is  only  responsible  to  third  parties  for  negligence 
or  wrongful  acts  connected  with  the  transaction  of  the  business 
of  the  agency,  and  anv  willful  omission  to  fulfill  an  obligation 
of  the  principal.— (C.  C.  2338-9-43.) 

571  Q. — Is  it  the  snme   as  between  servant  and   master? 

A. — No;  the  rule  is  more  strict  in  case  of  master  and  servant. — (Clark.) 

53 


572 

Q 

A 

573 

Q 

A 

574 

Q 

A 

575 

Q 

A 

576 

Q 

A 

577 

Q 

A 

-If  one  of  the  parties  to  a  contract  is  mentally  weak,  or  if  the 
consideration  was  obtained  by  fraud,  is  there  any  relief? 

-Yes,  by  recission,  which  is  by  restoring  to  the  other  party  every- 
thing received  from  him  or  by  offering  to  do  so  upon  condition 
that  the  other  party  shall  do  likewise. —  (C.  C.   1089.) 

-What  is  the  "Statute  of  Frauds"? 

-See  Statute  of  Frauds  (29  Charles  II,  Sees.  4  and  17),  Clarke  on 
Contracts,  Page   90;    also   C.   C.   1624. 

-What  is  meant  by  corruption  of  blood? 

-The   incapacity   to   inherit   or  pass   an   inheritance. — (Blackstone.) 

-When  is  blood  supposed  to  be  corrupted? 

-When    attainder    has    been    had    against    the    subject. — (Bouvier.) 

-How  would  you  serve  a  man  outside  of  the  State? 

-By  publication.— (C.  C.  412,  757,  1015.) 

-How  would  you  prove  service  by  publication? 

-By  the  affidavit  of  the  printer,  his  foreman  or  principal  clerk,  or 
affidavit  of  a  deposit  of  a  copy  of  the  summons  in  the  postoffice 
(if  address  is  known),  or  by  the  written  admission  of  defendant. 
— (  C.  C.  P.  412-415.) 

578  Q. — What  must  you  do  before  you  can  get  a  writ  of  attachment? 

A. — It  is  necessary  to  file  an  affidavit  with  the  clerk  of  the  court 
setting  forth  the  amount  the  defendant  is  indebted  to  plaintiff 
over  and  above  all  legal  set-offs  and  counter-claims.  That  said 
indebtedness  is  upon  a  contract  for  direct  payment  of  money, 
either  made  or  payable  in  this  State,  and  that  the  payment 
of  same  is  unsecured. — (C.  C.  P.  538.) 

579  Q. — How   may   a   defendant   recover   possession   of   property   from   the 

sheriff? 
A. — After  appearance,  upon   notice   to  plaintiff,  defendant  may  apply 

to  court  for  release  of  attachment.     Before  order  is  made  court 

must   require   bond   for   redelivery   of   property   or   payment    of 

judgment.— (C.  C.  P.  554-5.) 
-How  do  we  try  titles  to  land  in  California. 
-By  action  to  quiet  title.— (C.  C.  P.  738.) 

-Has  the  Supreme  Court  appellate  jurisdiction  in  divorce  cases? 
-Yes.— (C.  C.  P.  52.) 

-What  is  meant  by  appellate  jurisdiction? 
-It  is  that  jurisdiction  given  by  appeal  or  writ  of  error  from  the 

judgment  of  another  court. — (C.  C.  P.  936-980.) 
-What  is  meant  by  original  jurisdiction? 
-It    is    that    jurisdiction    bestowed    upon    a    tribunal    in    the    first 

instance. — Bouvier.) 

-What  action  would  you  bring  for  conversion? 
-Action  for  damages.— (C.  C.  P.  33-36-38.) 

54 


580 

Q 

A 

581 

Q. 

A 

582 

Q. 

A 

583 

Q- 

A 

584 

Q. 

A 

585     Q. — How  is  a  Poini>l;unt  stated? 

A. — It  must  be  stated  in  a  clear  and  concise  manner,  setting  forth  title 
of  the  action,  name  of  the  court  and  county  in  which  the  action 
ia  brought,  names  of  parties,  facts  constituting  the  cause  of  the 
action  and  demand  of  relief. —  (C.  C.  P.  426.) 
5S6  Q.— What  are  the  essentials  of  consent  as  applied  to  the  parties  of  a 
cantract? 
A. — (1)  It  must  be  free;  (2)  It  must  be  mutual;  and  (3)  It  must  be 
communicated  by  each  to  the  other. — (C.  C.  15G5.) 

587  Q.— What  is  the  object  of  action? 

A.— The  enforcement  or  protection  of  a  right,  the  redress  or  prevention 
of  a  wrong  or  imnishmcnt  for  public  offense. — (Bouvier.) 

588  Q. — What  is  a  fellow  servant. 

A. — One  engaged  in  the  same  department  of  labor  under  the  same 
general  control,  with  another. — (C.  C.  1970.) 

589  Q. — What  is  the  test  of  a  fellow-servant? 

A. — Same  master,  work  under  same  control  and  engaged  in  same  de- 
partment of  labor.  They  who  take  the  risk  of  each  other's 
negligence.— (C.  C.  1970.) 

590  Q. — Are  conductors  and  brakemen  fellow-servants? 
A.— They  are.— (C.  C.  1970.) 

591  Q_ — What  is  the  difference  between   the  common  law   and  the  law  of 

this  State  in  respect  to  husband  and  vrife. 
A. — At  common  law  husband  and  wife  were  considered  as  one  person, 
the  wife  not  being  legally  competent  to  make  contract,  while  in 
this  State  their  mutual  obligations  are  that  of  respect,  fidelity 
and  support.  In  all  other  ways  their  personal  interests  are 
separate. 

592  Q. — Where  does  property  go  on  death  of  husband  in  England? 
A. — To  the  eldest  son. — (Blackstone.) 

593  Q.— What   is  perpetuity? 

A. — Perpetuity  is  the  suspension  of   the  power  of  alienation  beyond 
the  period  allowed  by  law.     — (C  C.  715,  772.) 
591:     Q. — What  is  a  judgment  roll? 

A. — It  is  a  collection  of  all  papers  in  an  action  from  the  complaint 
to  judgment,  which  are  required  by  law  to  be  preserved  and 
filed  by  clerk  of  the  court  and  is  called  a  judgment  roll. — 
(C.  C.  P.  C61-670.) 

595  Q. — What  is  an   arraignment? 

A. — It  is  bringing  the  defendant  to  the  bar  of  the  court  to  answer  the 
accusation  contained  in  the  indictment  or  information. — (P.  C. 
988.) 

596  Q. — Who  settles  a  statement  on  appeal? 

A. — The  court  before  whom  the  cause  was  tried. — (C.  C.  P.  661.) 

597  Q. — What  is  meant  by  settling  a  statement? 

55 


A. — It  is  tlie  ackuowlcdgmcut  of  the  court  to  the  correctness  of  mat- 
ters set  forth   in  the  statement. — (C.   C.  P.  975.) 

598  Q. — What  was  the  first  step  in  getting  a  right  to  property? 
A. — It  was  possession. — (Blackstone.) 

599  Q. — Do  3'ou  remember  any  dates  as  to  when  the  right  of  inheritance 

began  ? 
A. — It  was   an   outgrowth   of   the   feudal   system   and  was   established 
in    England    by    King   William   I. — (Blackstone.) 

600  Q. — What  was  the  canon  law? 

A. — It  was  a  body  of  the  Roman  ecclesiastical  law  relating  to  such 
matters  as  that  church  either  had  or  claimed  to  have  the  proper 
jurisdiction  over. — (Blackstone.) 

601  Q. — How  did  the  municipal  law  of  the  Roman  Empire  become  adopted 

in  England? 
A. — It  was   at  first   adopted   and   made   a   part   of   the   unwritten   law 
by  immemorial  custom  and  usage. 
G()2     Q. — Which  were  first  made,  the  code  or  the  institutes? 

A. — The  institutes. — (Blackstone.) 
603     Q. — What  were  the  principal  laws  that  entered  into  the  code? 

A. — They   were   a   collection    of   the    Imperial    Constitutions. — (Black- 
stone.) 
601     Q.— What  is  a   de  facto  officer? 

A. — It  is  a  person  who  holds  an  office  by  aiiy  color  of  right. — (Bouvier.) 

605  Q. — What  is  the  difference  between  the  body  of  a  statute  and  code? 

A. — A  code  is  a  collection  of  existing  statutes,  scientifically  arranged. 
—(Black.) 

606  Q. — Is  it  used  as  one  code  or  many? 
A. — It  is  used  as  four  codes. 

607  Q. — How  may  specific  relief  be  given? 

A. — (1)  By  taking  possession  of  a  thing  and  delivering  it  to  the 
claimant;  (2)  By  compelling  a  party  himself  to  do  that  which 
ought  to  be  done;  or  (3)  By  declaring  and  determining  the 
rights  of  parties,  otherwise  than  by  an  award  of  damages. — 
(C.  C.  3367.) 

608  Q. — How  may  preventive  relief  be  given? 

A. — Preventive  relief  is  given  by  prohibiting  a  party  from  doing  that 
which  ought  not  to  be  done:  as  by  injunction  or  prohibition. — 
(C.  C.  3368.) 

609  Q. — What  was  a  term   of   court? 

A. — It  was  the  time  prescribed  by  law  during  which  it  may  be  in 
session. — (Perry.) 

610  Q. — What   is  the   difference  between   an   action   of  assumpsit   and   an 

action  of  debt? 
A. — An   action  of  assumpsit  is  one  brought  on   a   contract  not  under 
seal,  while  an  action  of  debt  is  one  brought  for  the  recovery 

56 


of  a  specific  aum  of  money  whether  on  contract,  umler  seal  or 
otherwise. — (Gould.) 

611  Q. — Who  was  the  chancellor  originally. 

A. — He  was  known  in   the  courts  of  the  Roman  Empire  as  the  chief 
scribe,   or   Secretary   of   the   oflicers   of   the   Prince. — (Bouvier.) 

612  Q. — When  were  wills  first  recognized  in  England? 

A. — They   were  found  among  the   ancient   Hebrews   and    Romans,  and 
have  existed  in  England  immemorially. — (Oardner.) 

613  Q. — Can  a  person  dispose  of  his  entire  estate  as  he  chooses? 
A. — He  can, 

614  Q. — How  many  different  kinds  of  estates  are  there? 
A.— 

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57 


615  Q. — Are  seals  requisite  to  a  will   in  this  State? 
A.— No.— (C.  C.  1276.) 

616  Q. — What  is  a  judgment  in  rem? 

A. — A  judgment  in  rem  is  one  which  determines  the  status  of  a  person 
or  thing  and  wiiich  is  equally  binding  upon  all  persons.  A  judg- 
ment in  personam  only  operates  upon  jiarties  to  the  record  and 
their  privies.— (9  Am.   Ed.   2015.) 

617  Q. — What  is  a  plea  in  abatement? 

A. — A  plea  in  abatement  is  directed  to  defects  apparent  on  the  face 
of  an  original  writ  when  not  so  apparent,  may  extend  to  declara- 
tions, grounds,  misjoinders,  nonjoinders,  pleading  of  prior  suit, 
variance,  etc. — (Gould.) 

618  Q.— What  is  a  plea  in  bar? 

A. — A  plea  in  bar  in  an  answer  to  the  merits  of  the  complaint,  a 
denial  of  the  alleged  right  of  action.  Plea  in  bar  may,  (1) 
Deny  the  whole  or  in  part,  allegations  of  declaration,  (2)  Con- 
fess and  avoid,   (3)   Set  up  matter  in  estoppel. — (Gould.) 

619  Q. — Do  such  pleas  exist  in  this  State? 

A. — Not  under  same  name.  Same  matters  may  be  set  up  in  answers. 
— (C.  C.  P.  437.) 

620  Q. — Are  there  any  restrictions  on  the  power  of  corporations  to  make 

by-laws  ? 
A. — No;    not   so   long   as   such   by-laws   are   not   inconsistent   with   the 
purposes  of   the   corporation   and  constitution  and  laws  of  the 
State.— (C.  C.  303.) 

621  Q. — What  is  the  rule  regulating  liability  of  corporations  to  servants? 
A. — An  employer  must  indemnify  his  employee  for  expenditures   and 

losses  in  discharge  of  his  duties  as  such,  or  in  obedience  to 
directions;  except  employer  is  not  bound  to  indemnify  his 
employee  for  (1)  losses  incident  to  ordinary  risk  of  the  busi- 
ness, nor  (2)  in  consequence  of  negligence  of  fellow  servant, 
unless  employer  was  careless  in  selecting  culpable  employee, 
nor  (3)  when  employee  continued  the  use  of  defective  machinery 
fully  understanding  the  dangers  thereof,  nor  (4)  in  cases  of 
contributory  negligence  except  as  herein  modified. — (C.  C.  1969- 
70.) 

622  Q. — Give  substance  of  provision  of  the  constitution  governing  impair- 

ing obligations  of  contracts? 
A. — That  no  bill  of  attainer,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  a  contract,  shall  ever  be  passed  by  any  state. — 
(U.  S.  Cons.) 

623  Q. — Is  the  principal  bound  in  all  cases  where  ratified? 

A. — Yes;  if  ratification  was  made  with  full  knowledge  of  the  facts. — 
(C.  C.  2310.) 

58 


624  Q. — If  real  estate  is  held  by  two  in  common,  and  they  want  to  par- 

tition, what  advice  would  you  give?    That  is,  where  the  property 
is  not  subject   to  division? 
A. — Sell  the   property  and  divide   the   proceeds   according  to,   as    the 
several  interests. — (C.  C.  752.) 

625  Q. — When  will  a  writ  of  habeas  corpus  issue? 

A. — When    the    person    in    whose    behalf    the    writ    is    applied    for,    is 
illegally  imprisoned  or  restrained  of  his  liberty. — (P.  C.   1474.) 

626  Q. — When  did  writ  of  habeas  corpus  originate? 

A. — Origin  obscure;  records  of  it  appear  in  year  books  of  fourteenth 
century.      Some    claim    it    to    be    of    Roman    origin. —  (Bouvier.) 

627  Q. — Where  would  you  apply  for  a  writ? 

A. — Superior,  Appellate  or  Supreme  Court. — (P,  C.   1475.) 

628  Q. — -What  action  would  you  bring  on  a  promissory  note? 
A. — Action  on  a  contract. 

629  Q, — What  action  would  you  bring  for  goods  sold  and   delivered? 
A. — Action  on  a  contract. 

630  Q. — What  are  particular  remedies? 

A. — They  are  those  remedies  adapted  to  meet  a  paiticular  need. — 
(C.  C.  P.) 

631  Q. — Give  the  forms  of  action  on  a  contract. 

A. — Debt,  assumpsit,  detinue,  covenant,  account  and  scire  facias. — 
(Perry.) 

632  Q. — Can  the  legislature  call  a  constitutional  convention  at  will? 

A. — Yes.  But  the  result  of  their  labors  must  be  submitted  to  a  vote 
of  the  people. — (Cal.   Cons.) 

633  Q. — How  would  you  contest  the  validity  of  a  last  will  and  testament? 
A. — By    filing   written    grounds    of    opposition    to    the    probating,    and 

serving  a  copy  on  petitioner  and  other  residents  of  the  county 
who  are  interested  in  the  estate,  setting  forth  any  facts  sub- 
stantially affecting  the  validity  of  the  will. — (C.  C.  P.   1812.) 

634  Q. — If  you  had  a  claim  on  an  estate  to  whom  would  you  present  it? 
A. — To  the  administrator  or  executor. — (C.  C.  P.  1500.) 

635  Q. — What   private   relations   govern   corporations? 

A. — The  officers  of  a  corporation,  being  its  agent,  occupy  a  fiduciary 
relation  towards  it  and  cannot  directly  or  indirectly  derive  any 
personal  advantage  or  profit,  from  their  position,  which  is  not 
enjoyed  in  common  by  all  the  stockholders. — (C.  C.  354.) 

636  Q. — Trusts  are  how  divided? 

A. — Voluntary  and  involuntary. — (C.   C.  2215.)      Express  and  implied. 
Implied  divided  into  constructive  and  resulting. — (Eaton.) 
•37     Q. — What  books  have  you  read? 

A. — (Answer  according  to  course  of  your  instruction.) 
638     Q. — What   is  the  source  of  land   titles  in   the   United   States  of  land 
lying  between  low  and  high  tide  along  the  coast? 

59 


A. — The  title  vests  absolutely  in  the  state  or  government  as  one  of 
its  inherent  rights. — (C.   C.   830.) 

639  Q. — What  provisional  remedies  are  provided  by  the  code  of  civil  pro- 

cedure of  California? 
A. — Arrest    and    bail,    claim    and    delivery    of    personal    property,    in- 
junction, attachment,  receivers,  and  deposit  in  court. — (C.  C.  P. 
478,  574.) 

640  Q. — How  would  you  procure  the  arrest  of  a  person  who  was  about  to 

leave  the  state? 
A. — By  setting  out  in  the  complaint  the  cause  of  action,  making 
affidavit  that  you  have  a  good  and  sufficient  cause  of  action, 
that  the  party  is  about  to  leave  the  state  for  the  purpose  of 
defrauding  his  creditors;  you  are  then  required  to  put  up  suffi- 
cient bond;  the  court  will  thereupon  issue  an  order  for  his 
arrest.— (C.  C.  P.  479.) 

641  Q. — What  are  the  allegations  in  a  complaint  on  a  promissory  note? 
A. — Title  of  suit  and  cause.      (1)    Time,  place  of  execution  of  note, 

copy   returned   or  annexed.      (2)    Delivery   of  note   to   plaintiff. 

(3)    Non   payment   and   amount   unpaid.      (4)    Prayer   for  judg- 
ment. 

642  Q. — Give  the  steps  in  foreclosing  a  mortgage. 

A. — (1)  File  an  action  in  foreclosure  in  the  Superior  Court.  (2)  File 
notice  of  action  in  County  Eecorder's  office.  (3)  Trial  and  judg- 
ment. (4)  Issuing  of  writ  of  execution  and  advertising  the 
sale.  (5)  Public  sale.  (6)  Issuing  of  certificate  of  sale  under 
execution,  and   (7)   Sheriff's  deed.— (C.  C.  P.  726.) 

643  Q. — How  does  the  court  take  official  knowledge  of  the  seal  of  Great 

Britain? 

A. — By  certain  facts  of  general  notoriety  assumed  to  be  true,  such  as 
the  existence,  title,  national  flag  and  seal  of  every  state  or 
sovereign  recognized  by  the  executive  power  of  the  United 
States.— (C.  C.  P.   1875.) 

-What  are  the  essential  parts  of  pleadings  at  common  law? 

-They  are  the  venue,  title  of  court  and  term,  names  of  parties  and 

action,  substance  of  complaint  or  defense,  and  the   conclusion. 
—  (Gould.) 

-What  are   the  essential   and   distinguishing  requisites  of  pleading 

at  common  law? 
-(1)  That  the  matter  pleaded  be  sufficient  in  law  to  avail  the  party 

who  pleads  it.     (2)   That  it  be  deduced  and  alleged  according 

to  the  forms  of  law. — (Gould.) 
-Of  what  do  the  facts  alleged  consist? 
-Matters     of     inducement,     gist,     aggravation     and     surplusage. — 

(Gould.) 
-Were  fictions  ever  resorted  to  at  common  law? 
-Yes;    example,   "Action   of  Trover." — (Campbell.) 

60 


644 

Q. 

A 

645 

0. 

A 

646 

Q 

A 

647 

Q- 

A 

648  Q. — If   a   verdict   varies   substantially   from   the   issue,   maj   judgment 

be  arrested? 
Yes.— (Gould.) 

649  Q. — What  was  the  Dartmouth  College  ease? 

A. — The  title  of  the  case,  Trustees  of  Dartmouth  College  vs.  Woodward. 
In  the  Dartmouth  College  case,  a  charter  had  been  granted  by 
the  King  of  England  to  the  trustees  of  Dartmouth  College,  a 
charity  founded  by  private  persons.  Nearly  forty  years  after- 
wards, the  legislature  of  New  Hampshire  undertook  to  alter  this 
charter  in  material  respects,  viz.: 

It  increased  the  number  of  trustees  from  twelve  to  twenty- 
one  and  gave  the  appointment  of  the  additional  members  to  the 
Executive  of  the  State,  and  also  created  a  Board  of  Overseers, 
to  consist  of  twenty-five  persons,  of  whom  twenty-one  were  to 
be  appointed  by  the  Executive  of  the  State,  with  the  power 
to  inspect  and  control  the  acts  of  the  trustees.  It  was  held 
that  this  was  a  material  alteration  of  the  charter,  and  the  acts 
of  the  legislature  were  therefore  void  on  the  ground  that  the 
charter  of  a  private  corporation  is  a  contract,  within  the  mean- 
ing of  the  constitution  of  the  United  States,  and  that  in  the 
Constitution  it  is  declared  that  no  state  shall  pass  any  law 
imparing  the  obligation  of  contract. 
350     Q. — What  was  the  Charles  River  Bridge  case? 

A. — The  title  was  Charles  River  Bridge  vs.  Warren  Bridge.  In  March, 
1785,  the  legislature  of  Massachusetts  passed  an  act  entitled 
"An  act  for  incorporating  certain  persons  for  the  purpose  of 
building  a  bridge  over  Charles  river,  between  Boston  and  Char- 
lestown,  and  supporting  the  same  during  forty  years."  This 
corporation  was  empowered  to  build  a  bridge  to  replace  a 
ferry,  the  franchise  of  which  was  granted  to  Harvard  College 
in  1650,  and  they  were  also  granted  permission  to  collect  certain 
tolls  allowed  by  law.  In  1828  the  legislature  of  Massachusetts 
incorporated  another  company  for  the  erection  of  another 
bridge,  the  "Warren  Bridge"  over  Charles  river,  from  Boston 
to  Charlestown,  within  a  few  hundred  feet  of  the  Charles  River 
Bridge;  and  which,  after  a  few  years,  was  to  become  free  and 
no  tolls  collected.  So  after  the  Warren  Bridge  actually  became 
free,  travelers  who  had  formerly  passed  over  the  other  bridge 
and  paid  tolls,  now  took  advantage  of  the  free  bridge,  and  as 
a  result  the  value  of  their  franchise  was  entirely  destroyed. 
The  proprietors  of  the  Charles  River  Bridge  filed  a  bill  in 
the  Supreme  Judicial  Court  of  Massachusetts  against  the  pro- 
prietors of  the  Warren  Bridge,  first  for  an  injunction,  and  after- 
wards for  general  relief,  on  the  ground  that  the  Act  of  the 
Legislature   in   authorizing  the  building  of  the   Warren   Bridge, 

61 


was  an  act  impairing  the  obligation  of  a  contract.  After  much 
litigation,  the  Supreme  Court  of  the  United  States  held,  that 
this  act  of  incorporation  of  the  proprietors  of  the  Charles  River 
Bridge  is  in  the  usual  form;  and  the  privileges  such  as  are 
commonly  given  to  corporations  of  that  kind.  It  confers  on 
them  the  ordinary  faculties  of  a  corporation  for  the  purpose 
of  building  the  bridge;  and  establishes  certain  rates  of  toll, 
which  the  company  are  authorized  to  take.  This  is  the  whole 
grant.  There  is  no  exclusive  privilege  given  to  them  over  the 
waters  of  the  Charles  river,  above  or  below  the  bridge,  no 
right  to  erect  another  bridge  themselves,  nor  to  prevent  other 
persons  from  erecting  one;  no  engagement  from  the  state,  that 
another  shall  not  be  erected;  and  no  undertaking  not  to  sanction 
competition,  nor  to  make  improvements  that  may  diminish  the 
amount   of   its   income. 

Upon  all  these  subjects  the  charter  is  silent  and  nothing  is 
said  in  it  about  a  line  of  travel  so  much  insisted  on  in  the 
argument,  in  which  they  are  to  have  exclusive  privilege;  and 
no  words  are  used,  from  which  an  intention  to  grant  any  of 
these  rights  can  be  inferred,  therefore  there  is  no  impairing  of 
the  obligations  of  their  contract, 

651  Q. — What  is  a  guaranty? 

A. — A  guaranty  is  a  promise  to  answer  for  the  debt,  default  or  mis- 
carriage of  another  person. — (C.  C.  2787.) 

652  Q. — What  is  warranty? 

A. — A  warranty  is  an  engagement  by  which  a  seller  assures  to  a  buyer 
the  existance  of  some  fact  affecting  the  transaction,  whether 
past,  present  or  future. — (C.  C.  1763.) 

653  Q. — What  is  surety? 

A. — A  surety  is  one  who  at  the  request  of  another  and  for  the  purpose 
of  securing  to  him  a  benefit,  becomes  responsible  for  the  per- 
formance by  the  latter,  of  some  act  in  favor  of  a  third  person, 
or   hypothecates   property   as    security   therefor. — (C.   C.    2831.) 

654  Q.— What  is  a  factor? 

A. — A  factor  is  an  agent  who,  in  the  pursuit  of  an  independent  calling, 
is  employed  by  another  to  sell  property  for  him,  and  is  vested 
by  the  latter  with  the  possession  or  control  of  the  property,  or 
authorized   to  receive   payment   therefor  from   the  purchaser. — 
(C.  C.  2026.) 

655  Q. — What  is  the  difference  between  a  factor  and  a  broker? 

A. — A  factor  may  buy  and  sell  in  his  own  name,  and  he  has  the  goods 
in  his  possession;  while  a  broker,  as  such,  cannot  ordinarily  buy 
or  sell  in  his  own  name,  and  has  no  possession  of  the  goods 
sold.— (Black.) 

62 


656  Q. — How  are  injuries  divided  under  the  code? 

A. — injuries  arc  of  two  kinds,  viz.:  To  the  person  and  to  property. — 
(C.  C.  P.  27.) 

657  Q. — What  is  a  dominant  tenement? 

A. — It  is  land  to  which  an  easement  is  attached. — (C.  C.  803.) 
(;-)8     Q. — What  are  the  different  modes  of  taking  testimony? 

A. — By   affidavit,  by   deposition   and   by   oral   examination. — (C.   C.   P. 
(2002.) 

659  Q. — What  is  a  deposition? 

A. — It  is  a  written  declaration  under  oath,  in  the  form  of  questions 
and  answers,  made  upon  notice  to  the  adverse  party  for  the 
purpose  of  enabling  him  to  attend  and  cross-examine. — (C.  C.  P. 
2004-6.) 

660  Q. — What  is  estoppel? 

A. — It  is  a  plea  which  neither  admits  nor  denies  the  facts  alleged  by 
the  plaintifif,  but  denies  his  right  to  allege  them. — (Gould.) 

661  Q. — How  may  writings  be  proved? 

A. — (1)  By  anyone  who  saw  the  writing  executed.  (2)  By  evidence 
of  the  gonuinencss  of  the  handwriting  of  the  maker;  or  (3)  By 
a  subscribing  witness. — (C.  C.  P.  1940.) 

662  Q. — How  is  the  code  of  civil  procedure  divided? 

A. — It  is  divided  into  four  parts,  viz.:  Courts  of  justice,  civil  actions, 
special  proceedings  of  a  civil  nature  and  evidence. — (C.  C.  P.  1.) 

663  Q.— What  is  libel? 

A.— Libel  is  a  false  and  unprivileged  publication  by  writing,  printing, 
picture,  effigy,  or  other  fixed  representation  to  the  eye,  which 
exposes  any  person  to  hatred,  contempt,  ridicule  or  obloquy,  or 
which  causes  him  to  be  shunned  or  avoided,  or  which  has  a 
tendency  to  injure  him  in  his  occupation. — (C.  C.  45.) 

664  Q. — What   obligations   cannot   be   specificially   enforced? 

A. — (1)  An  obligation  to  render  personal  service;  (2)  An  obligation 
to  employ  another  in  personal  service;  (3)  An  agreement  to 
submit  a  controversy  to  arbitration;  (4)  An  agreement  to  per- 
form an  act  which  the  party  has  not  power  lawfully  to  perform 
when  required  to  do  so;  (5)  An  agreement  to  procure  the  act 
or  consent  of  the  wife  of  the  contracting  party,  or  of  any  other 
third  person;  or  (6)  An  agreement,  the  terms  of  which  are  not 
sufficiently  certain  to  make  the  precise  act  which  is  to  be  done 
clearly  ascertainable.— (C.  C.  3390.) 

665  Q. — What   communications   are   privileged? 

A. — A  privileged  publication  is  one  made  (1)  In  the  proper  discharge 
of  an  official  duty;  (2)  In  any  legislative  or  judicial  proceeding, 
or  in  other  official  proceedings  authorized  by  law;  (3)  In  a  com- 
munication,  without   malice,   to   a   person   interested   therein,   by 

63 


one  who  is  also  interested,  or  by  one  who  stands  in  such  relation 
to  the  person  interested  as  to  afford  a  reasonable  ground  for 
supposing  the  motive  for  the  communication  innocent,  or  who 
is  requested  by  the  person  interested  to  give  the  information; 
(4)  By  a  fair  and  true  report,  without  malice,  in  a  public  jour- 
nal, of  a  judicial,  legislative  or  other  public  ofi&cial  proceeding, 
or  of  anything  said  in  the  course  thereof,  or  of  a  verified  charge 
or  complaint  made  by  any  person  to  a  public  official,  upon  which 
complaint  a  warrant  shall  have  been  issued;  (5)  By  a  fair  and 
a  true  report,  without  malice,  of  the  proceedings  of  a  public 
meeting,  if  such  meeting  was  lawfully  convened  for  a  lawful 
purpose  and  open  to  the  public,  or  the  publication  of  the  matter 
complained  of  was  for  the  public  benefit. — (C.  C.  P.  47.) 
666     Q. — What  causes  of  action  may  be  joined? 

A. — The  plaintiff  may  unite  several  causes  of  action  in  the  same  com- 
plaint where  they  all  arise  out  of:  (1)  Contracts,  express  or 
implied;  (2)  Claims  to  recover  specific  real  property,  with  or 
without  damages  for  the  withholding  thereof,  or  for  waste  com- 
mitted thereon,  and  the  rents  and  profits  of  the  same;  (3)  Claims 
to  recover  specific  personal  property,  with  or  without  damages 
for  the  withholding  thereof;  (4)  Claims  against  a  trustee  by 
virtue  of  a  contract  or  by  operation  of  law;  (5)  Injuries  to 
character;  (6)  Injuries  to  person;  (7)  Injuries  to  property.  The 
cause  of  actions  united  must  all  belong  to  one  only  of  these 
classes  and  must  affect  all  the  parties  to  the  action,  and  not 
require  different  places  of  trial,  and  must  be  separately  stated, 
but  an  action  for  malicious  arrest  and  prosecution,  or  either 
of  them,  may  be  united  with  the  action  for  either  an  injury  to 
character  or  to  the  person. — (C.  C.  P.  427.) 


64 


MAXIMS    IN    EQUITY. 

1.  Equity  will  not  suffer  a  right  to  be  without  a  remedy. 

2.  Equity  follows  the  law. 

3.  Equity  aids  the  diligent  and  not  the  negligent. 

4.  Between  equal  equities  the  law  will  prevail. 

5.  Equality  is  equity, 

6.  He  who  comes  into  equity  must  do  so  with  clean  hands. 

7.  He  who  seeks  equity  must  do  equity. 

8.  Equity  looks  upon  that  as  done  which  ought  to  be  done. 

9.  Between  equal  equities  priority  of  time  will  prevail. 

10.  Equity  imputes  an  intention  to  fulfill  an  obligation. 

11.  Equity  acts  in  personam. 

12.  Equity  acts  specifically  and  not  by  way  of  compensation. 


65 


MAXIMS    OF    JURISPRUDENCE. 

When  the  reason  of  a  rule  ceases,  so  should  the  rule  itself. 
Where  the  reason  is  the  same,  the  rule  should  be  the  same. 
One  must  not  change  his  purpose  to  the  injury  of  another. 
Any   one   may  waive   the   advantage   of  a  law   intended   solely   for   his 
benefit.     But  a  law  established  for  a  public  reason  cannot   be   contra- 
vened by  a  private  agreement. 

One  must  so  use  his  own  rights  as  not  to  infringe  upon  the  rights  of 
another.  , 

He  who  consents  to  an  act  is  not  wronged  by  it. 
Acquiescence  in  error  takes  away  the  right  of  objecting  to  it. 
No  one  can  take  advantage  of  his  own  wrong. 

He    who    has    fraudulently    dispossessed    himself    of    a    thing    may    be 
treated  as  if  he  still  had  possession. 

He  who  can  and  does  not  forbid  that  which  is  done  on  his  behalf  is 
deemed  to  have  bidden  it. 
No  one  should  suffer  by  the  act  of  another. 
He  who  takes  the  benefit  must  bear  the  burden. 

One  who  grants  a  thing  is  presumed  to  grant  also  whatever  is  essen- 
tial to  its  use. 

For  every  wrong  there  is  a  remedy. 

Between  those  who  are  equally  in  the  right,  or  equally  in  the  wrong, 
the  law  does  not  interpose. 

Between  rights  otherwise  equal,  the  earliest  is  the  preferred. 
No  man  is  responsible  for  that  which  no  man  can  control. 
The  law  helps  the  vigilant,  before  those  who  sleep  on  their  rights. 
The  law  respects  form  less  than  substance. 

That  which  ought  to  have  been  done  is  to  be  regarded  as  done,  in  favor 
of  him  to  whom,  and   against  him  from  whom,  performance  is  due. 

That  which   does  not  appear  to   exist   is  to  be   regarded  as  if  it   did 

not  exist.  » 

The  law  never  requires  impossibilities. 

The  law  neither  does  not  requires  idle  acts. 

The  law  disregards  trifles. 

Particular  expressions  qualify  those  which   are   general. 

Contemporaneous  exposition  is  in  general  the  best. 

The  greater  contains  the  less. 

Superfluity  does  not  vitiate. 

That  is  certain  which  can  be  made  certain. 

Time  does  not  confirm  a  void  act.  » 

The  incident  follows  the  principal,  and  not  the  principal  the  incident. 

An  interpretation  which  gives  effect  is  preferred  to  one  which  makes 

void. 

Interpretation  must  be  reasonable. 

Where  one  or  two  innocent  persons  must  suffer  by  the  act  of  a  third, 

he  by  whose  negligence  it  happened  must  be  the  Bufferer. 

66 


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